Posted by Melissa Anelli

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RDR Books has filed its response to the full request for an injunction to the Harry Potter Lexicon book filed by WB and J.K. Rowling three weeks ago. There are in all declarations from six people and several hundred papers of exhibits, most of which are copies of text from books (including almost the entire Lexicon book).

As a reminder of the current schedule:
Feb. 27: WB/JKR file a response to this response
March 13: A hearing will be convened with Judge Robert P Patterson

Edited to add: The full content of the filings has just been uploaded at Justia.com (by the ever-vigilant Nicholas, saving us a lot of bandwidth – thank you!).

1. That J.K. Rowling “appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction,” and that “this is a right no court has ever recognized,” and if accepted it would “eliminate an entire genre of literary supplements,” as well as threaten “encyclopedias, glossaeries, indexes and other tools that provide useful information about copyrighted works.” It says JKR‘s rights “simply do not extend so far” and she hasn’t shown that this guide poses a significant threat.

2. After giving background on the Lexicon, is describes the beginnings of the Lexicon book, which is later backed up in a declaration by Rapoport: It says Rapoport called Vander Ark after reading about him in an article, and Vander Ark “expressed interest in publishing a book version of the website. Rapoport said he thought the A-Z index was the best part to publish.

3. The brief recounts the history of the action by saying, “Shortly after RDR Books announced its intention to publish the Lexicon, Plaintiffs commenced this action.” There is no mention in this brief of the cease-and-desist letters that have been detailed by JKR/WB.

4. The brief says it is “far too late” for JKR to be the “first to publish” a Potter companion books, citing “nearly 200 Harry Potter companion guides,” “many of which incorporate A to Z listings.” RDR provides six of these books as evidence:
a. The Unofficial Harry Potter Encyclopedia: Harry Potter A-Z, by Kristina Benson
b. Field Guide to Harry Potter, by Colin Duriez
c. The J.K. Rowling Encyclopedia, by Connie Ann Kirk
d. A Muggle’s Guide to Exploring the Wizarding World by Fiona Boyle
e. Fact, Fiction and Folklore in Harry Potter’s World, by George Beahm
f. The End of Harry Potter? by David Langford

The documents do not list the 200 companion books. but count these six as the ones that had “especially striking similarities to the Lexicon in both format and content: At first flush, (a) appears to be out of print or unavailable on Amazon, (b) is about 2/3rds non-encyclopedic work, (c) seems to not be listed on Amazon, (d)’s title is actually “An Unofficial…” etc. and (f) is a predictions book.

5. Prof. Janet Sorensen declares in favor of RDR, and the brief says she says that “lexicons like this one have an important and distinguished place in the literary world…it organizes a tremendous amount of information into a concise and readable form…[and] provides a significant amount of original analysis and commentary.” It also says the HPL takes information from “painstaking collection” of Ms. Rowling’s interviews and statements, and Sorensen says it “helps readers to construct the universe of the Potter books in their minds, to understand its rich connections to the wide world in which we live, and to encourage the impulse to imagine a universe beyond the one depicted in the books.”

6. The brief maintains the HPL is “highly transformative,” and an example of work that has “always been held to constitute fair use.”

The argument of the brief states that to get this preliminary injunction, JKR/WB would have to show irreparable harm in the absence of it, and either “a likelihood of success on the merits or…sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in the movant’s favor.”

It maintains that:

1. JKR/WB has not shown a case of infringement: “the Lexicon does not ‘reproduce’ the Harry Potter Works (or any one of them) in any meaningful sense of the word’ and claims examples of derivative works include ‘a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted,” and then says the Lexicon does not fit in those categories because “reference guide” is not among them. It also says the Lexicon does not “recast, transform or adapt copyrighted works in comparable ways.”

2. It claims, based on a declaration from the Lexicon is a “supplementary work, the purpose of which is ‘explaining…commenting upon [and] assisting in the use of’ the Harry Potter Works, citing Benjamin Kaplan’s An Unhurried View of Copyright.

3. “Even if” it was a ”’reproduction’ or ‘derivative work,’” JKR/WB would have to “show substantial similarity between the Lexicon and Harry Potter Works.

4. The Lexicon is protected by Fair Use, the document says, because it is “a valuable reference tool that helps readers to better access, understand and enjoy the Harry Potter works.” The brief argues that fair use is not a “narrow exception” but an integral part of the Copyright Act incorporating the need to ‘allow others to build’ upon copyrighted works. It claims Fair Use is a ‘First Amendment safeguard’ that prevents copyright law from burdening free speech.

5. That fair use is governed by four factors that are non-exclusive:

a. The “purpose and character of use,” ie, whether the nature of the work is ‘transformative.’ The brief says a transformative work ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning or message,’ citing Campbell and a case against Amazon, Inc. a decision involving a search engine’s ability to produce thumbnail images.

The brief says a “thoughtful review of the Lexicon reveals significant, transformative functions that add extensive value, understanding and insights to the original works,” and claims the “organizational value” of the book makes it transformative.

It also says the Lexicon has a “significant amount of commentary and analysis,” citing the entry on Neville Longbottom and Luna Lovegood, talking about his bravery and leadership and Luna’s observations about her nature, decodes meaning of geographical and historical references and revealed “myriad errors and inconsistencies in the Harry Potter Works,” citing the example of Marcus Flint appearing as a seventh-year after he was to have graduated. (As an aside, this discovery was not made by nor is unique to this book; it is frequently spotted by fans and the first public record of it comes from 2000 ago on the HP for Grown Ups list by a user named Stephanie.)

The brief says “any fair reading” reveals significant transformative value, and that attempts to compare it to the case of the Seinfeld trivia book are inaccurate because of the nature of a trivia book not being a reference guide.

The brief compares the Lexicon to the Beanie Baby collector’s guide that was the subject of a lawsuit as well.

b. “Nature of the copyrighted work”: The brief says, again, that the Lexicon helps readers better “access, understand and enjoy” the Potter books.

c. Amount of the work used: This factor assess the portion of the original work used in the accused work, and this brief says that relies on “whether the extent of copying is reasonable in light of its purpose,” citing a search engine’s need to produce photographs and the Beanie Babies’ collector’s guide depicting the Beanie Babies products. It claims JKR/WB have ignored the purpose in their claim that the work relies too heavily on the original HP books. It also points out that the Lexicon does not borrow the overarching plot sequence or story ark, pace, setting, or dramatic structure, only “short quotes,” and “no more than what is necessary to its purpose.”

d. Market Effect: The brief says this depends (quoting Bill Graham from the MCA, Inc. v. Wilson suit) upon “balancing the benefit the public will derive if the use is permitted” versus “the personal gain the copyright owner will receive if the use is denied.” It says there can be “no dispute” the Lexicon gives “substantial public value,” citing J.K. Rowling’s and WB’s use of the web site (though it says “Lexicon,” without distinguishing the book from the site), claims based on a declaration from Steve Vander Ark. It also claims there can be no market harm because JKR/WB did not argue that the Lexicon book would be bought instead of one of the seven HP novels or seeing an HP movie. It also says that derivative works are “eligible for fair use protection.” It also says that it is incumbent on JKR to prove that the Lexicon is a substitute for the guide she wants to publish, and says that J.K. Rowling does not suggest anyone would purchase the Lexicon guide instead of hers.

The brief then goes on to say that the contents of the Lexicon being made available for free negates any market harm, and that the fact that it has existed online for free for six years should mean it is able to be sold in printed form.

“If and when Ms. Rowling decides to publish a companion guide, it will undoubtedly be unique,” the brief says, citing the Leaky Cauldron’s interview with J.K. Rowling in December 2007. It specifically mentions (multiple times throughout these documents) that she anticipated it might take as many as 10 years to produce, and that her ideal layout would be “facing pages” with backstory and extra details on characters on the left-facing pages and extra information that wasn’t in the books on the right. The brief repeatedly – outside of the exhibit in which is prints the enitrety of the transcript – leaves out the portion of the interview in which J.K. Rowling said it would be a definitive, give everyone-everything sort of guide. Here is the relevant text from the PotterCast transcript:

JKR: I’m just gonna say, “This might change,” but I imagined it as half of it, maybe on facing pages, but that might be difficult just through layout. But the ideal would be to have- say on the left hand side you’ve got a page showing all your back story, extra details on characters, or an entry on wands, showing what every character’s wand was and all of this stuff. And I think also it might be interesting to have information about the actual writing and what I discarded. So on one side it’s acting like the whole world is true and it’s giving you extra information on that real world and on the other side we’re admitting that it’s actually fiction and I’m showing yeah, discarded plots, characters that didn’t make it, problems in the plot. I think both lots of information are interesting so it would be nice to unite both of them… I think the only- the point of doing it, if I’m going to do it, it’s about doing the absolute definitive, giving people everything guide. … [E]verything that I’ve got, put it that way. That’s what I aspire to do at the moment. It might, for practical reasons not be possible to do both sets of information in that way but I would like to, that would be the ideal. … I think there’s no point in me doing it unless it’s amazing. And I think there’s no point in writing it unless it is everything and the last thing that I want to do is to feel that I have to rush something out because (SU: Right.) do you know what I mean? My hand is being forced or there’s demand and other people will fill it first. I think, I just want to do it right or not do it at all. And I really do want to do it right.

The brief claims her idea of the guide focuses largely on what is not in the books.

6. This brief claims there has been no bad faith on the part of RDR Books or Steve Vander Ark. It dismisses the JKR/WB “smoking gun” email in which Steve Vander Ark said a book of the HPL would be illegal and against Jo’s wishes, by saying, “Vander Ark is a layperson, not a lawyer, and his speculation as to the legal status of the Lexicon (since corrected) is beside the point.”

7. The brief says the quote in question from the Harry Potter Lexicon web site has been removed from the book’s cover – but it does not mention in this brief (only later, in Rapoport’s declaration) that it wasn’t removed from the Lexicon cover until after JKR/WB’s filing. It also claims if the quote remained the false endorsement evidence offered by JKR/WB would not apply because the quote does not have “the potential to mislead anyone,” and maintains the survey in which an independent consultant showed people the cover of the book and determined that 38-55 percent of them had been falsely mislead by the fansite award text, was fatally flawed because there was a disclaimer underneath it. It claims JKR/WB instructed respondents to look only at the quote and invite them to ignore the disclaimer.

8. The brief says JKR/WB has not met the burden of showing “irreparable harm.”

a. Approximately 10 percent of the material included in the Lexicon book is part of the original postings on the web site when it was created. The remaining is material added to the web site since 2000.

b. No one has ever demanded a “cease-and-desist” for material on the web site that is now in the book.

c. The staff compiled an A-Z index of the site in 2005.

d. It has been his goal to present “a comprehensive encyclopedia, a single source in which they can find descriptions and definitions of all the characters, places, spells, creatures and physical objects in the world of Harry Potter.”

e. He says his contributions are about 60 percent of entries, and 40 percent by staff or other contributors and editors “and also fans whose comments and emails have proved useful and informative.”

f. In making the web site he says he has used general fable and myth research tools as well as the Potter books.

g. The only revenue has come from the “very limited advertising I allow. About three years ago, I began accepting ads from Amazon.com in return for a payment of approximately $15 per month. About 18 months ago I began accepting ads from Google for a payment of approximately $100 per month. Together, these ad revenues have covered the cost of operating the web site.” [The Leaky Cauldron houses and runs the Harry Potter Lexicon for zero charge, and has since it came under its current domain name. That is true as of this posting. The original intent before this response was filed was to transfer the Lexicon to its own server; because of this question of ownership and cost, we will refrain from changing any variables where sworn statements are concerned, and will not transfer the domain until litigation has been completed. At that time we will be happy to do so.]

h. The web site gets approximately 350K pageviews per month on its index page and 1.5 million per month on its entire site.

i. “Beginning in about 2003, I received regular requests from fans for printed copies of the Lexicon website, proof of a demand for a print version…At the same time, a number of people contacted me with proposals for using the material on the Lexicon website in a printed encyclopedia. For a considerable time I declined these suggestions…There were two reasons for this. First, until the summer of 2007, Ms. Rowling had not completed the series of Potter books, so that any encyclopedia published before that point would be incomplete. Second, until August 2007, I believed that an encyclopedia, in book form, would represent a copyright violation. This was an assumption on my part, however, as a layperson.”

j. “Before visiting London in July of 2007, I requested a fifteen-minute meeting with the Agency [Christopher Little] to discuss both the work visa [ that he was trying toget] and the possibility of using material from the Lexicon for a book and was told they didn’t have time.” [There is no document in the filing proving this, unless it refers to this letter, as cited by JKR/WB, which does not mention his wish to publish the Lexicon as a book.] “I made no further plans for a book until Roger Rapoport of RDR Books contacted me.”

k. Roger Rapoport told Vander Ark that he had consulted with an expert who said the publication would be legal, during discussions about the book. Steve then requested RDR indemnify him against lawsuits.

l. Work on the book began after August 20, 2007, and was completed on Sept. 15. It contains half the web site.

m. The book is smaller than the online resource because of space issues. “Entries in the book are often condensed versions of corresponding sections of the web site.

n. “It is true that, in a few places, the book employs phrases or sometimes whole sentences that are similar to phrases or sentences in the Potter books…in those cases, however, the similarity in language was unavoidable.”

o. “Over the past several years, I have gained widespread recognition as an expert on the Potter world. I have been interviewed about various Harry Potter subjects by the School Library Journal, Time magazine, the BBC, the New York Times, the Detroit Free Press…and several other publications whose names I do not recall.”

Vander Ark claims David Heyman, producer of Harry Potter, said the Potter flimmakers use the Lexicon web site almost every day. This was supposed to have been said during a set visit in which many fan outlets were invited to see the Order of the Phoenix lot.

q. The Electronic Arts Studio, the declaration says, has printouts of the reader’s guide on its walls.

r. After the release of the sixth book, Cheryl Klein of Scholastic sent Steve a thank-you note on behalf of his staff which is included as an exhibit. It reads: “Steve Vander Ark for the HP Lexicon: Dear Steve and the rest of the Lexicon team – On behalf of the Scholastic Half-Blood Prince editorial staff, I’d like to say thank you for the wonderful resource your site provides for fans, students, and indeed editors and copy editors of the Harry Potter series. We referred to the Lexicon countless times during the editing of HP6, whether to verify a fact, check a timeline, or get a chapter and book reference for a particular event…We’re all HP fans ourselves, of course, but you made our work immeasurably easier through the one-stop searchable HP encyclopedia the site offers. Please accept this as a token of our admiration and appreciation, and ever so many thnanks again – All best wishes, Cheryl Klein.”

s. The sole purpose of the Lexicon website and book, Vander Ark says, “is to encourage fan interest in, and serve as a reference to, the Harry Potter books…the Lexicon book cannot be financially successful or profitable if the Harry Potter works are not financially successful or profitable….I believe that Harry Potter fans will buy a similar work written by Ms. Rowling even if they have purchased a copy of the Lexicon book because her fans are very loyal to her and will always want what she writes.”

t. He deems many declarations from JKR/WB to be inaccurate and says that the books referenced by JKR/WB have been “carefully chosen to exclude” what has been seen in the case as other HP encyclopedias. It also says Neil Blair has never asked Vander Ark to remove from the website any material which is now part of the Lexicon book, and says that means the same content in a for-profit book is therefore not infringing. It says Diana Birchall’s claim that no outside sources were used to write the book is incorrect, and gives a few examples. It also goes on to illustrate what he deems as analysis in specific entries.

u. “Fans of Harry Potter, and ultimately Ms. Rowling her self, will only benefit,” from publication of the book.”

Further declarations are from Shawn Malhotra, a first-year law student at New York University, who summarized press statements J.K. Rowling has made regarding her encyclopedia, which quotes a significant portion of the statements J.K. Rowling made in the PotterCast interview:

The quote they use is this:

“The ideal would be to have- say on the left hand side you’ve got a page showing all your back story, extra details on characters, or an entry on wands, showing what every character’s wand was and all of this stuff. …And I think also it might be interesting to have information about the actual writing and what I discarded. So on one side it’s acting like the whole world is true and it’s giving you extra information on that real world … and on the other side we’re admitting that it’s actually fiction and I’m showing yeah, discarded plots, characters that didn’t make it, problems in the plot. I think both lots of information are interesting so it would be nice to unite both of them.”

“Well, exactly, to be honest, I think the only- the point of doing it, if I’m going to do it, it’s about doing the absolute definitive, giving people everything guide.”]

There is also a declaration from David Harris, another first-year law student, who has provided summaries of the six books listed as also uncontested HP encyclopedias.

Roger Rapoport also provides a new mockup of a cover for the book, which was designed in “late January.” The title has been changed to The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials and consists of a plain white cover. The front and back now list extensive disclaimers.

Janet Sorensen, a tenured professor at the English Department at UC Berkeley, made a declaration that says the Lexicon is “part of a long tradition of lexicons and guidees,” and mentions as a comparable example Charlotte Lennox’s Shakespeare Illustrated, in which she presented a guide to the public domain characters and plots of Shakespeare, and Samuel Richardson’s own guide to his own work, Pamela Illustrated. Most of the beginning of the declaration involves guides and lexicons in the 19th century and early 20th. It also mentions 20th-century examples of guides to JRR Tolkien and CS Lewis’s work, and notes that the works were published while still under Tolkien and Lewis’s copyright but doesn’t address the level to which permission was sought or granted for each. The Lexicon, she says, is a “ready resource” for J.K. Rowling’s creations; Sorensen mentions her own need to have her memory jogged while reading, etymological information in the book and citations. She says the Lexicon is helpful for the youngest readers of the book, referring to a six-year-old she knows who might find value in it. She also says that the Lexicon’s pointing out of mistakes is likely to be unique to it, and not included in Rowling’s version, adding value. She also attests to the light moments of critical interpretation and analysis.

*

That’s all for now. Apologies if it was too long, and you didn’t read. More in a few weeks. We hope, at least…

169 Responses to RDR Books Files Response to JKR/WB in Lexicon Suit

says:

Yep, exactly as most of us have been speculating for months now.

It really is sad that it’s come to this point, the fact that Steve had Rappaport indemnify him means he’s got nothing to lose even if RDR does.

Legally, RDR has the burden of proof and so far they’ve failed magnificently.

says:

Melissa, you are simply amazing for doing all of this!

says:

And Steve said he had consulted copyright experts? And he contacted everyone he could think of? Yet none of that is mentioned here or proven?

says:

I must say, the more and more I read about this, Steve comes off badly in my opinion. Much like a child who is rather cross with not being allowed to play with a particular toy. The letter (the link in red) also is a nice little jab at Steve, coming from the prosecution side. In the brief, SVA claims to not have been asked to remove anything from his site, but that letter clearly states that he was asked. In fact, they had to ask him twice. It’s a frightening look at a side of SVA in which he wasn’t willing to ask for permission before doing certain actions. Even if he was unaware of the legality of them, if it seemed shady, then he probably shouldn’t have done so.

It also feels as though he is trying to use the argument of “well I had it on the ‘net and you didn’t stop me then!”. This is rather peculiar to me. Mainly for the fact that it’s his legal staff using the argument. Intellectual Property is a tricky game to play in, especially with all that the Internet raises, but it tends to be clearer when it comes to print. If you can’t do it when writing a paper in middle school, high school or college, what makes him think it’ll be okay to use another person’s works and ideas out in the real world?

I’m also going to have to jump on the bandwagon of being frightened that Ms. Rowling will no longer want to write “The Scottish Book” after this battle. Following the PotterCast with her, I was extremely excited. But she distinctly said “And I think thereâ€™s no point in writing it unless it is everything and the last thing that I want to do is to feel that I have to rush something out because (SU: Right.) do you know what I mean? My hand is being forced or thereâ€™s demand and other people will fill it first.” Well, SVA is trying to beat her to it. If he thinks that she’ll want to do it if he wins this battle, he’s vastly mistaken.

says:

So it’s confirmed. This book simply lists out the terms and people from the Potterverse in A to Z format. And RDR is actually making a case that such a book is legal. If it weren’t so frustrating it’d be hilarious.

says:

I could fill my dumpster with the load of rubbish RDR is spluttering out. It was Steve’s way of getting himself out of trouble and severely disappointed. RDR should drop it. Their trying to make money off someone elses creation.

says:

What utter nonsense.

Not only are they conflating the book and the website, but the arguments they’re making were already addressed in JKR/WB’s case and shot down. They’re going to get smoked in court.

says:

Melissa,

You sure you do not want to stick to journalism? Way to present all this as a news story. It’s always good to see a fellow journalist doing a great job on a story that is not the easiest to sum up.

says:

Dru, the newspaper that published this entire thing is imaginary. LOLOLOL. Thank god for no word count limit in the Internets.

I haven’t left journalism, just newspapers. :)

says:

Having first-year law students provide testimony? What, were the actors from L.A. Law too busy?

says:

It’s UC Berkeley, not USC Berkeley. We are the golden bears, not the University of Spoiled Children.

says:

Once again, thanks Melissa.

says:

Woops, sorry Bears fan. Have you seen the length fo this thing? LOL

says:

Thank you Melissa for rifling through all these documents and summing them up for us. You’re leaving newspapers? When did this happen? I knew I should’ve listened to PotterCast! I will later, for sure.

As for the first year law students thing, it adds evidence to my theory that Stanford took this case as a lesson to students in failure.

says:

“(SVA) says his contributions are about 60 percent of entries, and 40 percent by staff or other contributors and editors â€œand also fans whose comments and emails have proved useful and informative.â€

So the profits from the book would have been split 60-40 between SVA and the staff contributors, right?

says:

Sorry but Steve and RDR can go fly a kite. I can’t believe the nerve of these guys. He doesnâ€™t deserve anything except a good kick up the behind. I canâ€™t understand why some people on here are supporting him.

I’d like to see/read the evidence of David Heyman saying that “the Potter filmmakers use the Lexicon web site almost every day”.

So for example did they reference the site when they couldn’t work out the Black family tree? NO they rang Jo. I mean why ring Jo when we can look at some unofficial fansite. Get real.

If it was said during a set visit (which a doubt) then someone out there should have a record of it. Melissa were you in attendance and do you recall hearing this?

says:

So Janet Sorensen mentions Charlotte Lennoxâ€™s “Shakespeare Illustrated”? Lennox was an eighteenth-century writer, and worked at a time when copyright was hardly ever respected. At that time, authors frequently stole each other’s ideas and passages; in some cases, they successfully composed parodies (e.g. Fielding’s parodies of Richardson’s moralistic tales), in other cases, what they did was simply plagiarism. It’s interesting that Sorensen did not refer to a more recent publication, like, an encyclopedia published in the past fifty years or so?
What’s more, how come van der Ark is entitled to use the contributions fans made to the website? Did he ask all of these people to approve of his plans to milk their ideas for all they’re worth? If I’m not mistaken, an earlier file had revealed that he actually lied to other contributors about his own share in the revenues … Certainly, it must have costed time and energy to compile the information on the website. Yet, nobody had asked him to do that … And, as far as his so-called genuine criticism is concerned: the fact that Neville is brave should have been obvious for everyone who has read PS, where he is sorted into Gryffindor and was awarded points for standing up to his friends …

Melissa, thanks for your incredible work!!!!

says:

Melissa – I realise you feel the need to reassert which side you’re on (nor do I blame you for not wanting to get on WB’s bad side), but isn’t it a little unprofessional to add your own commentary to everything RDR’s side says?

As it happens, I don’t think what JKR said about hers being the “definitive” guide contradicts anything in these filings. On the contrary, what they seem to be arguing is precisely that JKR’s WILL be the definitive guide, which means there’s no way sales of the Lexicon can harm sales of her book.

says:

I love the intrawebs:

In this article by SVA:

“One last thing…David Heyman told me that they use the Lexicon all the time for reference.

All the time. Almost every day, he said.

Whoa. “

http://www.hp-lexicon.org/about/films/lex-op-set-teaser.html

So they’re referencing a hearsay claim to Heyman’s words by SVA? Sheesh.

says:

Good post Zhiyal

“And, as far as his so-called genuine criticism is concerned: the fact that Neville is brave should have been obvious for everyone â€¦” Yes exactly!

I have been on HPL once or twice to see if there’s any information that I missed from either the books, from Leaky Lounge or JKs site and interviews, but unless I’m missing a whole section of the site, it just seems to be a well organised collection of info from the books and other canon sources. Obviously SVA put a lot of work into it, but it’s not original criticism.

(I am not including the wonderful speculative essays that exist on that site, like the ones that appear in Scribbulus, which presumably won’t be in the book?)

I have no intention of buying SVAs book if it is ever allowed to be published. Like beckett, I really hope JK doesn’t get put off writing her own guide after this messy business. These sorts of disputes can leave a nasty taste in the mouth of all concerned and I wouldn’t be surprised if she never wanted to talk HP again. But I would rather go without a guide altogether that betray JK by buying SVAs version. In the meantime I can get all the enjoyment I need from her books and imagine the background.

says:

Corrine, that isn’t at all commentary; a few instances in where an obvious fact, a seeminghalf-truth, etc., an be pointed out, we do – like the next line in the transcript. It’s exceedingly shifty that the transcript falls short there and any news article anywhere, if the reporter new the circumstances, would point it out. We haven’t at all started doing commentary…

says:

well, I’m still on the side of JKR/WB morally, but I begin to wonder if SVA/RDR might have a chance in court. Less clear-cut than I had assumed.

says:

Melissa~

I don’t see how that’s “shifty” at all. As I said, the part they left out actually supports their claim, so why would they omit it on purpose? It look to me like they quoted the relevant portion – based on that part alone, the fact that JKR’s book would be “definitive” is implied. In fact, they even quote that exact word from another source (bottom of page 19, start of page 20 of the main response document).

To take another example, you feel the need to point out that the Flint error is not unique to the Lexicon. So what? Not everyone who would buy this book will be a regular on HPfGU or Leaky or whatever, so it would be news to them. And most likely to the lawyers and the judge, too. More importantly, the Lexicon book would be woefully incomplete if it didn’t mention the Flint mistake. So far as I can tell, that is only cited as one example of where the book points out errors in the text (which in turn is used to support the claim that there is benefit to having guides written by someone other than the author).

I’m not making any judgements on the rights or wrongs of this case (in fact, I change my mind almost every day). Having read both arguments, it seems that both sides are convinced of the rightness of their legal standing, which would suggest that this is a grey area of copyright law that we are unqualified to talk about. Whichever way it goes, it will be new legal ground, and we should just sit back and let the lawyers do the work.

Whichever way the case goes, the mudslinging that’s been aimed at those involved – especially Steve and those close to him – is completely out of line. I believe that by adding remarks to your posts which attempt to sway opinion, you are encouraging this behaviour. I’m not suggesting that you’re doing this deliberately, but I’m sure you won’t deny that you’ve been making your personal feelings towards Steve pretty clear.

says:

Melissa, thank you again for reading all those files and giving a synopsis.

Maybe you can now use this for a book of your own and give all those lawyers and lawstudents “the complete guide to the lawsuit JKR/WB in Lexicon suit” and then use all our comments for your benifit?

Sorry, just joking around because I am so mad and irritated by both SVA and RDR. They are just abusing the world Jo has created. And as others pointed out before: if RDR and SVA win this case (and I hope they don’t) other autors won’t be that tollerant toward websites, fansites, fanfiction.. as Jo has allways been, just to prevent that someone else would steal and benefit again.

says:

“a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted”

The lexicon plans to publish a a-z guide: all the information is changed in another form. I don’t see how it wouldn’t fit in the above.

says:

Oh,and thank you for giving all this information! It’s really interesting to read all this. Intellectual property is such a interesting subject, and this gives me a nice idea of how it’s done in the US (I’m Dutch).

says:

“Whichever way the case goes, the mudslinging thatâ€™s been aimed at those involved â€“ especially Steve and those close to him â€“ is completely out of line.”

Are you the internet police?

says:

Thanks a ton for the objective reporting Melissa, you’re great at this!!
Coming to the case, why are they still bent on this? It’s looking more and more ridiculous by the minute, and because of all this mess, I don’t know if Jo is going to have the heart to ever write “The Scottish Book”.

says:

Joining the applause for Melissa’s efforts to keep us informed….

I know I won’t—lack of time, energy and ultimately of interest—but has anyone plowed thru the RDR documents to see what exactly the content of the Lexicon would be? Yes, I do know what the RDR spokesman claimed: “Its everything on the Website” And more recently the RDR lawyers are claiming that is not the case, that the Lexicon actually includes substantial creative work….we’ve discussed the issue before, but now there are photocopies of the proof pages available. So, has anyone looked?

Ironic, but the commercial value of the Lexicon in print is probably dropping daily. If it had appeared on bookshelves anytime in mid-Summer through the holdiay shopping days of 2007, it’s sales would have ridden on the back of the DH, Beedle the Bard, and the Ootp film popularity. That unusual convergence of events within such a short period of really fed interest and sales of anything HP soared. Frankly I doubt that a print Lexicon, if released now, would have as much commercial success…

says:

Ya I know Melissa,

I was just saying you present this as a great news story on the website. Keep up the good work (and can not wait for the book).

There is journalism outside of newspapers? I need to look into that because writing for a weekly is not going to pay the bills forever.

says:

budb: And moreover, the whole legal process is putting off exactly those people in fandom who might have bought the book, and that will probably increase the longer the legal action lasts. So even if RDR wins, which allowing for appeals etc. probably won’t be soon, they may not sell enough copies to cover the cost of the legal action.

says:

I think I’m on Steve’s side. Yes some of his claims are a little out there, but then again some of WB’s claims were a little intense as well. I think thats just all part of the machine of the lawsuit. And I don’t think RDR’s lawyers are all that bright.

But I am reserving final judgment, because I think it really does depend on the content and length of the intended book..

I don’t believe Steve is trying to make a quick buck. In fact, I was one of the people who requested a print version of the lexicon (my eyes get tire on the computer screen), so I understand his motivation there.

Nevertheless, all that aside, I’m not sure I’m convinced that this case counts as copyright infringement. Yes, don’t attack me here, I understand that the majority of the book was a list of entries. But HP is more than a list of magical items. We love HP because of the characters. It was successful because of the story, the narration, and the details were added pleasure.

If Harry Potter was a book listing imagined magical items and places and characters, then the encyclopedia would undoubtedly be copyright infringement. (though HP would’ve been preeeetttty boring)

And while I understand Jo’s reasons for not wanting an encyclopedia published (and honestly, I even agree with it!), but just because her reasons are cool and great, I don’t think that necessarily give her to right to halt other companion volumes.

says:

roonwit, greetings! I was wondering where you were…your input into this conversation is always informed and thoughtful, which i and others appreciate.

if we are on the right track, then is the idea behind the suit becomes —if (and its a big IF) RDR wins, RDR will make its money from the court settlement and not from sales. proving damages tho would be difficult: RDR’s attorneys would need to argue IF the book appeared in Nov 2007 (for example) projected sales would have been….

says:

If this is the best that Steve and RDR can come up with, then they have no case at all.

And I’m going to love the response from JKR/WB. Who wants to wager that there will be statements from both Cheryl Klein and David Heyman reminding Steve that any tacit approval of a FREE online resource isn’t the same thing as giving the go ahead to a for-profit version of the same site?

There’s no way that RDR is going to win this, which is fine with me.

says:

You know, I wonder what Steve is thinking? Seriously…I would like to hear HIS reasoning behind doing this to Jo. Legality and lawyer issues aside, why is he doing this? Surely, he does not want to be on the outs with Jo…is this book that important to him? How can something so wholly unoriginal be worth all of this to him. Is it the money? Is it standing up for his fellow “fan” writers? I don’t get it. Does he not feel bad about what he is doing to Jo. His whole career, at this moment I mean, is because of her work…or at least her success is the reason why he has the Lexicon and this book he is trying to publish. You know what Steve, you should have dropped this a long time ago. Not because of legal issues or RDR…but because Jo wished it…Jo who has given us all so much freedom as it is…you should have dropped it long ago out of basic human kindness. Sigh.

says:

Corrine, these are little things that not all fans are intimately familiar with that bear reminding/repeating. That happens in every news article, when the information in the article presents information that lacks public but perhaps not very well known information that is known to the reporter. The JKR/WB filing had very little of this. That’s not the case here.

There’s plenty MORE I could add that is not THAT, but is my own experience, and not public information, which is not knowledge that is otherwise available. That is what I specifically did not include.

says:

â€œthe Lexicon does not â€˜reproduceâ€™ the Harry Potter Works (or any one of them) in any meaningful sense of the word…”

OH, PLEASE. Did Steve actually say that with a straight face???

BTW, Melissa, you’re doing a really great reporting job. THANK YOU.

says:

to my fellow HP fans at large: gentle friends:

From the screen names that appear in the Lexicon related threaded discussions, its pretty obvious that some closely follow the entire discussion and have throughout, others pop in and out and don’t read carefully, and others appear new to the topic… ok, thats ‘normal’ in any protracted discussion. Yesterday’s discussion re the sudden spate of Lexicon related editorials and interviews brought out some nastiness, despite the fact that—as someone put it (was it professor i?)—the situation smacked of a feint that was designed to coincide with the submission of RDR’s documents to the court….

but, as has been pointed out before, once the issue of the Lexicon went to court, JKR and SVA really don’t matter, the attorneys do. to personalize the discussion is very human—as someone put it about a month ago, to see this sad situation as a battle between JKR and SVA puts human faces on the legal issues. But the fact really is that JKR and SVA are now really on the sidelines, and appropriately both should be very guarded about what they say/write. And we as fans should recognize that fact and not make this a Steve vs Jo issue, or attack either of them as individuals. Instead its RDR vs WB, as represented by their respective legal teams.

says:

And Corrine: Yeah, I’ll absolutely deny I’ve been making any personal feelings about this clear whatsoever. I’ve never once publicly shared my personal feelings on this, and I appreciate that you think you have inferred them but you haven’t gotten them from me. It’ll be better for both of us if neither assumes the other thoughts. :)

Thanks, all, again, for keeping it civil.

says:

Melissa thanks for going over all of the text for us. I’ve read over the filings and I can’t help but feel that Steve and RDR books is completely wasting our time and American tax dollars.

It’s sad to see the books being entered as evidence are not simply relisting of facts as The Lexicon book is, but they are genuine critique and analysis. Any book with literary discussion will retell the facts of the story, but most of the print is the critique. I fear that by focusing so much of the argument on The Lexicon Web site, which Jo has said is fine as people don’t have to pay to use it, the site will suffer. Of course there are many other fine online reference sites for Harry Potter.

I’m also disheartened to see Steve again bringing up the cost of running the web site and the need for ads. If, as Melissa has pointed out, the site has been paid for by Leaky, then what costs are involved? Also, since there are no costs involved in running the site, and if he is correct that 40% of the work on the site is done by others, do they get 40% of the money earned? After all, if Leaky is covering the costs of running the site, then all the money made is going directly into Steve’s pocket. (which might explain his recent live journal post about wanting a VERY expensive toy)

I’ve vowed not to return to that site as I don’t want to give Steve one more penny of support. I’m hoping this case ends and his Lexicon never sees the light of day. Then true fans can go back to the joy of discussing the novels, speculating about The Scottish Book and forget about SVA.

says:

The legal experts supporting RDR and the Lexicon are correct, and I am appalled at how Melissa is doing everything she can to slant this in favor of Rowling. There were whole magazines of unauthorized fannish speculation about Star Trek in the 1970s and 1980s, and Paramount never lifted a finger to stop them, and at least one Tolkien encyclopedia and a volume of professionally published Tolkien fanfiction, criticism, and filk. Who does JK Rowling think she is, that she’s better than JRR Tolkien and Gene Roddenberry?

Also, if Melissa is so clearly on Rowling’s side that she feels compelled to annotate legal briefs, why is she still allowing the Lexicon to piggyback on her website? Isn’t she somehow helping the Lexicon violate her idol’s copyright?

Also, let’s be real: JK Rowling has flat-out lied about her characters, her plots, and her imagery. She’s also contradicted herself about a dozen times in interviews after the last book was published, AND she had the nerve to inflict a poorly edited, contradictory, badly characterized doorstop on her fans last summer. Her “encyclopedia” will only be more of the same, whereas the Lexicon has always done its best to reconcile the books and the interviews. It’ll be far more worthwhile IMHO than anything JK Rowling produces.

Finally: why the Lexicon? And why now? And why does Rowling think that the few thousand copies the Lexicon would sell could possibly have enough of an impact on her sales to damage them? Doesn’t she make enough money? And if she’s so intent on helping Comic Relief, why doesn’t she just assign the royalties from one her books to them in perpetuity? Why is she making herself look so greedy?

says:

Thank you Melissa that was alot of reporting- no worries I learned my lesson yesterday-LOL, but like I said I think this is just sad that SVA is trying to take her idea for this encyclopedia that she was going to give the earnings to chariety, and turn it intio something beneficial for himself. It just reminds me of elementary school when one kid did all the work and the rest just took credit- very unfair- she owns the world she creates and she is not a copyright hog. Those books mentioned above gave something completely new to the table.

says:

The fact is; if you respect JK Rowling and the universe that we enjoy soley because of her, then you should also respect her wishes.

I do not think that this lexicon will hurt the sales of ‘The Scottish Book’ necessarily, but if JKR wants the book to be the only one out there, (because, lets face it, there is and probably never will be a bigger website out there of HP knowledge than the hp-lexicon.org) than that is her wishes, and we, as Harry Potter fans, must respect that. She is the creator, we are the fans. We have no right to claim her universe. It is hers, and she has let us enter her mind.

Steve Vander Ark, I don’t know why you are doing this, I have heard you on PotterCast several time and I believe you are a huge Harry Potter fan and a very smart and talented person. If the reason you are doing this is because of your passion for the universe, or because of more selfish means like money, etc., I don’t know. But please, respect J.K. Rowling’s wishes.

That is, and will always be, my point of view. I have too much admiration for her, and these books have ment too much for me, to ever hurt her or disrespect her in any way. If only that was the way everybody saw this. I do not want to speak badly about either party, but I do not like what Vander Ark is doing here.

- Marte Sofie (Norish_Sophie)

PS: I am sorry for any spelling or grammar mistakes. English is not my first language and I am also writing this quite quickly as it upsets me on Jo’s behalf.

says:

Melissa,

I too thank you for keeping us up to date and plowing through all the legalese. As to the comments about your objectivity. I think some readers are “trying” to preform legilimency on you. Goes to show how well muggles can do that!

says:

The last post was annotated where there was additional public information, too, that was not widely reported or perhaps widely known – news posts aren’t just regurgitations. When a significant piece of the puzzle is left out for a legal reason, there’s no reason at all to deny that piece to laypeople seeking the full puzzle. In fact, that’s often a reporter’s job, to connect pieces that haven’t been connected by the story; this was much less necessary on the other side because every last thing was backed up with an exhibit; this was not the case here, and since the idea is to save people having to read the whole thing, it is necessary that that is pointed out. Everything included is fact, none of it commentary. There’s plenty more I could comment on were I so inclined, and plenty of nonfactual things that could be posted as well. :)

There is no slanting needed, were I so inclined; the fans have been nearly 100% in Jo’s favor and since no one can ever ask for 100 percent, those are odds that need no help. But I won’t refrain from using my knowledge to point out obvious points that would otherwise be missed; when it happens on the JKR/WB side it will be noted there, too.

says:

If SVA /RDR are successful in publishing their A to Z guide, will they be in a position to accuse JKR/WB of copyright infringment for any A to Z material in the Scottish Book?

Think about it: SVA paraphrases the HP books into dictionary format, and then JKR publishes her own dictionary format. Dictionary formats can vary from each other only so much, and the original work being cited is the same. It is very likely they would appear similar in many ways. So does his earlier publication then make it impossible for her to publish?

It would be outrageous if the publication of the Lexicon book effectively precluded Jo from writing about her own material in any way she wishes. I think that is what’s really at stake here, and they know it.

says:

It boggles my mind that anyone could still support RDR and Steve after everything we’ve learned, and after reading many of the documents they’ve submitted to the court.

JKR and WB are totally in the right in this, and the Lexicon book is completely out of bounds. The book is little more than an index of things that JKR has already written and said. None of that is considered Fair Use, since it relies on a single source (i.e., Jo) for everything. The rest of their arguments are just as flimsy. They’re going to lose this case. The only question is how badly.

says:

This might be off topic, because I only read the very beginning of the article, but HOW DARE THEY ACCUSE J.K ROWLING OF ANYTHING!!! EXCEPT FOR WRITING THE BEST STORIES EVER!!!!?? O.k, that might be off topic. Just getting my point across.

says:

Let me get this straight. SVA is accepting money from Google and Amazon to “cover operating expenses of the site” when, in fact, Leaky is hosting his site for free and so there ARE no operating expenses?

SVA has some NERVE!

I also note that Leaky has dropped the “Lexicon is a partner site to Leaky” disclaimer at the bottom of these posts. Is that partnership no more?

says:

Farfalla my understanding is that it is part of JK’s concern, that if she were to publish an encyclopedia later on, she might be open to a copyright suit from RDR! This is what I find most despicable, that the original creator could potentially be put into that situation. I don’t know enough about copyright law to know whether that would actually happen in reality, but wasn’t it said in earlier news stories that RDR have already attempted to sue WB for inclusion of a timeline on their website, despite the timeline being based on JKs material?

says:

Ellid, please substantiate your assertions, or retract them.

As part of our participation here in the Leaky discussions, we are agreeing to be fair and polite with one another. Above, I reminded people that we need to depersonalize the discussion about the Lexxicon and not attack either JKR or SVA. Perhaps I should have spelled out what seemed the obvious: let us also be courteous with one another and with the TLC staff, and let us not project onto one another any motives or meanings we cannot prove.

says:

You know, I don’t know whether to cry or laugh at the fact that RDR Books had to resort to first-year law students.

says:

Yes, anne, RDR had attempted to make an issue out of the timeline.

JKR/WB’s side confronted that head on in their initial filing, if I remember correctly. They ask for a ruling on the timeline just to kill the issue outright, I think.

says:

@Ellid: So basically, because you hated Deathly Hallows and JKR forgets things or changes her mind, the Lexicon book should be allowed to stand?

Too funny. Maybe someone should call the first-year law students that filed briefs in this response and tell them to try that argument in court. I’m sure that will go over like gangbusters with the judge.

says:

Legalese makes my head hurt. I have my opinions and then I read more mumbo jumbo and I think “that could be true” or “I understand that point.” At this point, I just wish this was over. Can we time-turner and do an intervention with Steve right about the time RDR contacted him?

Leaky, thanks for continuously reporting on this matter…especially when no one else seems to be.

Melissa, I know it must be difficult to keep out your 2 cents…especially when I know some us (me) really want to hear what you all to have to say and are more than a little concerned about hurt feelings for those of you closest to Steve. So….I just wanted to commend your integrity as fan, friend, and journalist. Thanks…you are the best!

says:

Gigi,

Just because Leaky is hosting the Lexocon web site doesn’t mean there are no operating expenses involved with keeping the site going. For example, web design and development software is not free. It is highly likely that SVA has expenses not addressed by Leak’s hosting services.

Ellid,

Without substantiating yor assertions you are out of bounds. How are the Star Trek items from the ‘70s and ‘80s you mentinon relevant? Where do they compare relative to the intellectual property laws? What specific lies has JKR told about her characters, plots, and imagery? So Jo changed her mind on an unpublished detail or two. That’s not lying. It’s editing!

Regarding Melissa slanting her reports, WHAT? Melissa needs no help defending herself, least of all from me. She is extremely capable of that herself as she has already demonstrated. But to say her posts have been biased in any way is, to borrow a word, delusional. Reporting is not simply regurgitation of information, court documents in this case. If it were there would be no need for the article at all. A simple link to justia.com would suffice. Instead Melissa has condensed the information for us with accurate clarification of incomplete information, seeming half truths, and augmented it with third party FACTS. Melissa’s coverage of this legal news is more objective and integrity based than any other I’ve seen, especially the giant news houses like the New York Times. And what’s so amazing about that is she maintains public neutrality in spite of being such a huge fan of JK Rowling.

Melissa,

You have my respect and admiration! God bless you.

says:

e. He says his contributions are about 60 percent of entries, and 40 percent by staff or other contributors and editors â€œand also fans whose comments and emails have proved useful and informative.â€

So he’s using people who where helping the Lexicon while it was not-for-profit now to earn money?! There’s a reason Jo let the Lexicon exist, and that’s because it’s not-for-profit!

BTW, I can’t thank you enough Melissa for summarizing the entire thing!

says:

I think it is very helpful in my point of view to see all of the facts laid out in an almost spreadsheet format about each claim. I’ve found it interesting, after looking at each of the guides, to see how each guide they’ve mentioned differs in one way or another from The Lexicon in it’s print form. I can not see that any of these pieces of evidence support the claim that SVA’s book is like any of these.

Melissa I’ve truly appreciated TLC’s covering of this story. Both here, and in the comments on The Leaky Lounge. I like seeing the facts all together, it makes it easier to judge for yourself. Yes, the facts do point a negative finger toward SVA, but ” you lay in the bed you made” so to speak.

says:

“Can we time-turner and do an intervention with Steve right about the time RDR contacted him?”

chuckle yes, I’m wondering whether SVA himself would like to do that by now. If it were me I would want to, or crawl into a hole somewhere.

says:

The really sad & stupid thing about all of this is that if RDR & Steve had just responded, in the first place, to JKR/Warner’s request to send them a draft copy of the proposed Lexicon book to review, none of this might be happening now.

Thanks, Melissa, for slogging through all this. And on a much more interesting & less contentious topic, how are things going with your book?

says:

well said, onespeedonly. I think the news here has been the most unbiased I’ve seen and I am grateful to Melissa for clarification of some points. Otherwise I’d be completely confused.

says:

Great job Melissa/Leaky. Thanks!

says:

I don’t doubt that WB will win this case.

says:

The thing they fail to metion is that the whole reason Jo wants to prevent publication of this book is because she wants the ecyclopedia money to go to charity

says:

It seems to me that what RDR/SVA are saying now is different than what they were originally saying and doing. Initially they told WB to (paraphrased here) ‘go to the Lexion and print it off’ if WB wanted to know what was going to be in the book. Now, in reading Melissa’s summary and Steve’s declaration, that isn’t exactly the case – supposedly the book will only be an A-Z encyclopedic listing. In addition, the cover of the proposed Lexicon book has been changed dramatically from something that looked as if it had JKR’s support to “The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials and consists of a plain white cover. The front and back now list extensive disclaimers.”

I can understand completely how JKR and WB would fight for their rights over the initial book and I totally support them in that fight. As things have evolved or if RDR and SVA had been truthful in the beginning if that truly was their intent (see the above changes I noted), perhaps it’s not copyright infringement. Not being an attorney, I don’t know. But I do think it’s odd that so much has changed about the proposed book on RDR/SVA’s part since we first heard about the case and I think they know they were in the wrong and are trying to cover it up by making these changes. Just my thoughts!

Kirstin

says:

Hi Anne,
I absolutely agree with you [“But I would rather go without a guide altogether that betray JK by buying SVAs version. In the meantime I can get all the enjoyment I need from her books and imagine the background”]. I’ve been on the Lexicon site several times in the past, and while it certainly is well compiled by van der Ark and the fans who sent stuff, the information that he plans to publish in the book not only comes directly from JKR’s books, but has been, more often than not, quoted literally from the novels. There has been no analysis whatsoever, it’s merely rearranging sentences. He has no right, no right at all to draw profits from JKR’s hard work.

says:

“Also, letâ€™s be real: JK Rowling has flat-out lied about her characters, her plots, and her imagery. Sheâ€™s also contradicted herself about a dozen times in interviews after the last book was published, AND she had the nerve to inflict a poorly edited, contradictory, badly characterized doorstop on her fans last summer.”

LMAO. Let me guess… a bitter slytherin fan?

“e. He says his contributions are about 60 percent of entries, and 40 percent by staff or other contributors and editors â€œand also fans whose comments and emails have proved useful and informative.â€

So if – god forbid – he gets the lexicon published, are these people going to be apid for their contributions? Does he even have their permission in the first place?

says:

budb (on page 2): I think RDR will also have trouble getting damages if they win because they have effectively already conceded some points in the course of the lawsuit, such as the revision of the cover (which they now seem to have revised a second time after JKR/WBs detailed complaint was posted), so (in my non-legal opinion) they have admitted that the original lawsuit was at least partially justified.

says:

Thanks anne.

says:

re: “LMAO. Let me guessâ€¦ a bitter slytherin fan?”

Heh. Either that or a bitter Harry/Hermione shipper. Or one of Snape’s astral wives. ;)

says:

“From the screen names that appear in the Lexicon related threaded discussions, its pretty obvious that some closely follow the entire discussion and have throughout, others pop in and out and donâ€™t read carefully, and others appear new to the topicâ€¦ ok, thats â€˜normalâ€™ in any protracted discussion. Yesterdayâ€™s discussion re the sudden spate of Lexicon related editorials and interviews brought out some nastiness, despite the fact thatâ€”as someone put it (was it professor i?)â€”the situation smacked of a feint that was designed to coincide with the submission of RDRâ€™s documents to the courtâ€¦.”

@budb, many of us have carefully read Melissa’s posts on this case and some have even taken the time to read the actual legal documents. You will have to excuse us if we are not as dispassionate as you about this case, but could you please try to be less pompus about it?

says:

oh, i am procrastinating and not doing work!

roon, its an all around sad situation, as SVA put it….

one thing that does strike me is the speed at which the legal documents are becoming public. my little experience with the court system in the US suggests that in most cases the exact details of legal wrangling and the documents filed with the court are kept confidential most of the time. here, we have instant access, from both sets of legal representatives….

ok, i better work, or face the consequences!

says:

I can’t help but think that the response from RDR goes to great lengths to demonstrate why any derived work NOT of the form of the one they intend to publish should be considered fair use. Which, it seems to me, is also what JKR/WB have been saying.

It strikes me, as others have noted, that RDR seems to continually be avoiding the core question from JKR/WB—namely how repackaging can be construed as fair use.

says:

sorry you find my efforts at a dispassionate and neutral writing style “pompous”, Molly. However, I’m sure you’ll agree that too many are posting without the close reading you are doing? Its that segment of our fellow fans I hope to persaude to be more attentive and careful in their arguments

says:

“c. The J.K. Rowling Encyclopedia, by Connie Ann Kirk”

I was wondering about that. I went to the library a couple of weeks back and found this book in the HP section. It is indeed an A-Z listing of HP stuff with deflinitions/descriptions. However, since it is not in print anymore (perhaps because of threatened legal action) I don’t see how it is relevant.

says:

By the way, reporting facts that are damaging to the cause of SVR and RDR is not a sign of bias. It is a sign of good Journalism.

says:

Thank you, once again, Melissa.
Ah, Corinne, Coral; Ellid, Elide, so close, and yet, so far.
Let me see: first of all itâ€™s the Definitive Book that in principle should be sanctioned by Rowling and WB, and now itâ€™s an UNAUTHORISED book with tons of DISCLAIMERS.
I agree with Kirstin, this, as of 8 February 2008, is a different book. They are, of course, entitled to print an unauthorised book that does not simply regurgitate great chunks of Rowlingâ€™s work. But that, however, was not the book SVA/RDR was trying to publish in November 2007. They were trying to pretend they had official sanction and recognition when they had neither, and, in reality, had done all in their power to publish, precisely without getting the requisite official sanction.
The argument that this is about the principle of free speech or Fair Use can now be seen for what it always was: a rather feeble smokescreen.
Conclusion: costs to WB, and RDR will be able to print their Unauthorised Book.
No doubt in their publicity blurb they will have the chutzpah to state:
â€œTHE BOOK THEY TRIED TO BAN BLA, BLA BLAâ€¦â€
As for RDR/SVAâ€™s claims re principle and truth? Fan Fiction anyone?
What does one call someone who confuses fact and fiction?
Deluded?
Yep, thereâ€™s THAT word again!!!

says:

Let’s face it… Even the best reporter cannot be perfectly objective. I have to say, Melissa, that I admire your devotion and your (good) hard work.
However I also have to agree with some. I would not call this article “unbiased”. This is not really a criticism. I perfectly understand that in such cases it is difficult to keep “a straight face”. You cannot not convincingly argue that your “additions” to the pure summary do not convey a more personal opinion… As some have stressed, some “additions” were not absolutely necessary (such as the comment about flaws in the plot) and merely indicate latent criticism…

says:

A good editorial/opinion piece might get it out of your system…

says:

I just figure no true-blue fan will a) pay for something they can get for free online, and b) deny the charities that will be the beneficiaries of the revenue from the Scottish Book their due.

I will 100% buy the Scottish Book. I don’t begrudge JKR any of her millions (billions? :-) ).

I also don’t begrudge SVA and the HPL staff any rewards for the work they’ve put in on the lexicon… but could I suggest instead that he sell advertising on the site, and get revenue that way? That way, the content remains free, and he will get revenue over the long term. He could also accept donations.

(I am purposefully NOT checking the HPL to see if these things are already in place, to make a point. If they are, the HPL staff should leave it at that.)

It sounds like RDR is using “two wrongs do make a right” kind of logic, referencing all the other similar ‘authors’ who have enriched themselves on the backs of real author’s ingenuity and creativity.

But as in all things, just because its legal doesn’t mean it’s ethical.

says:

Flo,

I think if you re-read Melissa’s summary you will find her comment on Marcus Flint very appropriate. The relevant passage:

It also says the Lexicon has a â€œsignificant amount of commentary and analysis,â€ citing the entry on Neville Longbottom and Luna Lovegood, talking about his bravery and leadership and Lunaâ€™s observations about her nature, decodes meaning of geographical and historical references and revealed â€œmyriad errors and inconsistencies in the Harry Potter Works,â€ citing the example of Marcus Flint appearing as a seventh-year after he was to have graduated. (As an aside, this discovery was not made by nor is unique to this book; it is frequently spotted by fans and the first public record of it comes from 2000 ago on the HP for Grown Ups list by a user named Stephanie.)

The statement ‘revealed “myriad errors and inconsistencies…’ implies that the HPL made those errors known to the public. That they were first to make the discovery and “reveal” it. Melissa simple states that this is not so and properly gives credit to Stephanie.

says:

Maybe it’s just me, but there’s something…shifty…about the way the book’s title changed after it had been challenged. Now I know that titles and everything can change as the publication gets closer, but didn’t WB/JKR get an injunction to halt publication? I guess this one must not have been as ironclad if RDR found a way to work on the book around it.

It sickens me that RDR would use part of the Pottercast interview out of context (or to be more fair, without the information where Jo talks about why she wants to do the definitive guide), I hope the court sees straight through that—if I were WB’s lawyers I’d have the full interview at hand and ready to play.

What’s absolutely the worst about all of this is that Jo’s not getting the peace she wants/deserves. I mean, she just spent the past year editing and promoting Deathly Hallows and now she’s got this court case to think about.

I’ve said it before and I’ll say it again, the legal precedent that would be set by a RDR victory appalls me-that information could be rehashed from a not-for-profit source and sold in print-it’d be much different if the Harry Potter world was in public domain (which usually occurs 50 years after an author’s death unless the rights are renewed) but it’s not. Especially when RDR is bringing up famous companion books, keep in mind that some of them have either done things properly or follow proper rights rules.

I am certainly no legal expert, nor would I ever claim to have a decent hint on how the legality of this entire thing is, but every post seems to me to make RDR look less and less credible…those books they cited do not seem to infiringe, particularly the predictions….If JKR loses somehow though, I swear I will not associate with anyone who buys SVA’s guide for any purpose other than to argue against it.

says:

Actually Helios Lightra I suspect that some of the books do infringe JKR/WBs copyrights, namely the ones that are out-of-print, and that may not be coincidence.

says:

“just because its legal doesnâ€™t mean itâ€™s ethical”
That does go both ways Caracticus, just because it isn’t entirely ethical doesn’t mean it’s illegal. Maybe a sad truth, but a truth non the less. If the book meets the terms of Fair Use, and is proved to not infringe on copyright, then it will, (and probably, though not necessarily: should) be published. What galls me is that if they willingly handed over the manuscript when asked (as so many others have) – they may have negotiated a much better book, and this lawsuit would not have been necessary.
If that list of books proves anything, it’s that Jo does allow companion books, but since no one involved on her or WBs team were able to determine whether this book was infringing – they felt they needed to sue. I think that is a point that many people are either missing or forgetting. When asked for a copy, RDR told them to go to the online Lexicon and press print, and quite frankly – I do not blame them for being disturbed by that. As it is, the book has obviously been altered somewhat since then – the cover and title being one large example. The fact that the manuscript is nothing like a printed out copy of the website is possibly another.
So many people are getting hung up on the “for charity” or “richest author in the world” stuff and – while these are parts of the suit – the main issue is Copyright Infringement. Even if Jo decided to build on her fortune and not even look at a charity, it would not make it alright for someone to illegally profit from her work. Why would it be a different story if she (like most other authors) had not made more money than the gross national profit of several countries? (they couldn’t hide behind their “David and Goliath” smokescreen, but it wouldn’t change the merits of the case!)
Like I said, if the book meets the standard for fair use, it will probably be published. But if SVA was so interested in working with her on her Encyclopedia, why wouldn’t he allow the appropriate people check that his Lexicon met those standards? To be fair, he may not have been told about the Cease and Desist letters, and if that is the case then Rappaport is someone who might not have his best interests in mind. I have spent so much time thinking that SVA was someone who got caught up in something that he couldn’t get out of, and that might still be the case, but the change in his statements – first he said that HE had spoken to IP experts and been assured that the book was legal, and now he is saying that Rapoport had consulted with an expert and received the assurances.
He has also said that he had contacted everyone he could to try and talk about the book (of which there is no proof) and there have been reports of his saying something along the lines of taking no response as permission (of which I have no proof,) I remember reading something about it, but do not remember where it is – I am sure this is not where he planned to be at this point in his life, but I also remember reading someone say that it is our choices that define us. He has made some very poor choices, but at the end of the day, I hope he gets out of it with some shred of dignity.

says:

I am one of Snapes astral wives.- Im just in denial. I think people who are sticking up for SVA havent come to their senses and realized that she is the one who created all of this, its her story and her world. She has let alot of people write books about HP theories and such without having to ok them, and many other things have gone by to, that are part of the HP world. Good ness sake I saw a Harry potter bed spread ( I wanted it but it didnt fit my bed size -LOL) so this is completely different . There have been alot of occasions where people didnt need her absolute consent. But he isnt adding anything he taking her idea for his own benefits.

says:

again, personal attacks on either SVA or JKR, or on any guest posting here at Leaky are really inappropriate to the matter at hand. Remarks about people’s personal lives are irrelevent and frankly distasteful.

says:

Not too long at all, Melissa. Thanks so much for posting this.

says:

And it the back of my mind I have the Q&A session at the GVSU forum playing in the back of my head and SVA is still saying that the website is a better source than the book. And that there’s no fan art work, essays, commentary, etc. Come to think of it, I can’t get the forum out of my head at all.
Thanks Melissa for taking the time for posting this.

says:

Okay, point taken. Edits made…

...but still LOLing@Ellid:

Who does JK Rowling think she is, that sheâ€™s better than JRR Tolkien and Gene Roddenberry?

I don’t believe JKR thinks herself better than either one; she’s just trying to protect what is hers (and she has every right to do so).

The “fannish speculations” about Star Trek were not the same as what SVA/RDR Books are currently trying to peddle—the Lexicon is nothing more than a rearrangement of JK Rowling’s intellectual furniture, so to speak. It is not speculation. It is not scholarly. It is not parody. It is not criticism. It is not substantially original or transformative. The original cover didn’t even mention that it was unauthorized or unofficial.

Moreover, Star Trek speculation, fic, and the like were not undertaken for profit. Nor was the Lexicon website, for that matter, which was why Rowling was happy to let it exist. She had the right to order it taken down, but she didn’t because it was a free resource all fans could access. It has existed all these years because she has allowed it. She didn’t have to.

As for the Tolkien volumes referenced, I am not a Tolkien fan and am therefore unfamiliar with them. However, I would imagine that they have either been authorized by the Tolkien estate or else fall under the terms of Fair Use. Even if they don’t, however, any decision by the Tolkien estate not to suppress them (when they do in fact have the legal right to do so) has no bearing on this case.

Rowling has the right to prevent infringing books from being published. Not only that, she has an obligation to do so, because if she lets a book like the Lexicon slide by without opposition it weakens her case against other derivative books that come out. Carping about Rowling’s alleged “greed” misses the point entirely. Rowling has more than enough money, and she knows it. This has nothing to do with whether Rowling will make another dime from her creation; it’s about protecting the integrity of her work and her copyright from people who lack the imagination to create anything of their own and thus decide they can ride her coattails.

Not-LOLing@Melissa, who is doing an admirable job of presenting all this information. Noting contradictions and omissions between different versions of the participants’ statements is not bias. Pointing out that RDR books only changed certain things after legal action was taken by JKR/WB, and that they, in their statements, have failed to mention this, is not bias. It’s a FACT. Thank you, and keep up the excellent work.

says:

budb on pg. 5: On the subject of the filings becoming public so quickly: Usually, documents filed in a case are a matter of public record. All one has to do is go down to the clerk’s office at the courthouse and ask (and pay) for copies. If it’s not a matter of public record, it is because the document(s) contain sensitive information (for example: a child’s name/social security number in a divorce or abuse case or other trade secrets like Coca-Cola’s secret formula). Many times, this sensitive information is redacted from the public record and the remainder of the document is made available to the public. The speed at which these documents are made available to the public depends on the speed at which the clerk’s office makes them available, or, in the alternative, the attorneys make the filing(s) available to the public themselves. Many US courts are now allowing the electronic filing of documents which allows them to be published more quickly.

says:

Melissa, your a friend of cheryl’s. I find it strange that scholastic and bloomsbury have compiled their own enclyopedias for editing purposes, but now RDR Books are claiming that cheryl klien uses the lexicon to edit the books when scholastic has claimed to have their own which i belive, given that Cheryl has been continunity editor and would need a reference like that

I doubt she can comment openly on the case, but I really wish she could comment on that. I wish she could comment on the claim that she uses the lexicon.

it looks to me like RDR Books is making this claim to disprove wb’s statement that the publisher keep their own collection of reference materials for editorial purposes.

I am frustrated by how they dont seem to back any of this up with proof. RDR Books is a vanity press that publishes books predominatly from one author, roger rapoport, and having picked up a few of his books in a bookstore and read tried to read actually them, it became clear to me he started RDR because no other publisher would publish his books.

thankfully we now know for sure how this started. a few months ago, I was ready to give steve the benifit of the doubt if it turned out RDR approched him, but his statements attacking jk rowling claiming she is trying to choke creative freedom has changed that. Steve, you didnt create anything in harry potter, she did, and therefore, they are her creation. you didnt do anything creative, you simply ripped apart her works and alphabatised them. I am sorry, but I can no longer give you the benifit of the doubt Steve, because you clearly do not deserve it the way you abuse jk rowling for creating something in her own mind and publishing it.

Steve, if you want creative writes, then create your own world and write about it , dont claim and demand ownership of someone elses creation. when you told a room of fans that the fans own harry potter now, you were wrong. true fans respect jk rowling, but attack, abuse, and defame her.

says:

Quote:
h. The web site gets approximately 350K pageviews per month on its index page and 1.5 million per month on its entire site.

I bet there’s less than that now Steve! Many of us true fans refuse to support you now so I’d love to see how many hits you get these days. Shame shame shame on you.

says:

just read the part where melissa commented that leaky has been hosting the lexicon free of charge. does this mean leaky itself is paying for the cost of the lexicon and therefore steve is pocketing the money he gets from ads, or those he donate it to leaky to support the servers. or… did i simply misread it?

says:

NotTheHBP: I would imagine Cheryl just used the lexicon for convenience, if say she wasn’t in the office and needed to look something up, or more likely as a second check if she found an inconsistency and wanted to see whether it was real, or the mistake was in the Scholastic reference material.

says:

Just wanted to say rock on, Melissa. It’s great that you’re doing this, because no one else in the community seems to be bothering to inform us fans of the going on.

says:

i agree with Mich ~ if RDR just handed over the book in the first place to let them read it this most likely wouldn’t have happened.

was RDR miss-guided in their handling of this from the beginning? i believe they were in so much as being rude, but it doesn’t change the fact that there are tons of other hp companion books out there.

it seems the real argument is ~ does the lexicon book have commentary and analysis? at least that was wb/jo’s main complaint. now, according to RDR it does.

regarding that and the statement steve made on ansible.co.uk, at first glance this did make him sound a touch weird but truly after really understanding what he was saying, i personally think he has a legitimate point. yes, he would make money on hp, as will melissa when her book comes out in the fall and mugglenet has already with their book… why shouldn’t steve? they are all analyses and commentary of the hp world which is legal under Fair Use.

i love leaky, i love jo, i love hp, i love the lexicon. i truly hope everyone in this comes together and works it out. :)

says:

the fact that RDR has done a complete about face on what the book is is highly suspect. they have now claimed that the book is the opposate of what they said the first time in a court of law. meaning they have now commited perjury because only one claim can be truthful, and the other contradictory/lie.

says:

st_mel, many thanks for clarifying that point for me…tho, I will admit to a degree of uneasiness about the degree of web-access. Digital archiving I understand, but several recent news stories about local jurisdictions (one in Missouri, I think, and the other in PA?) make me wonder about how much it serves anyone’s interest to have so much information so accessible…

In one of the cases I am thinking of, a local jurisdiction was putting online traffic court information, including vital infomration about the individuals ticketted (including driver’s lic!); in the other case, it was highly detailed financial information concerning property transfers and taxes. Different I agree from the type of legal matters we are concerned with here, but the broad issues of privacy and protection of personal (or corporate) information would still apply

Just wandering off topic a bit, for which I apologize, but much more fun than doing what I should be doing….

says:

A few people in here have shown themselves to be the victims of lazy journalism. In many news outlet today, journalists do no more than blandly repeat any press release. Actual journalism requires fact checking and sharing facts with the reader so that they can have an informed reading. That is exactly what Melissa has done here, and it only proves her a better journalist than most.

My hat off to you, Melissa

says:

umm… blah blah blah blah blah… just oodles and oodles of fancy shnanzy wording and unreliable examples to try to make their case, TO NO AVAIL… No one in their right mind will take this seriously… No judge can deem this as reliable evidence and data… They just need to stop wasting the time of WB and Jo and their lawyers. I know they won’t; they’re in too deep and it would be so humiliating for them to drop it, although if you think about it, they’ve already made quite the fools of themselves, Steve VA and the RDR Books bunch.

says:

BTW, Melissa: Thank you SO MUCH for all your HARD WORK and DEDICATION to HONEST, UNBIASED JOURNALISM!!! You really are the best!

@ nick and budb, dudes why so serious? we are Harry Potter fans discussing something that is going on, we really dont care if we sound like professional journalists or not, and making personal jokes as long as they are appropriate are funny, lighten up a bit would ya. thankx much appreciated

says:

Wow… “a witch” on pg 5… the claim that Melissa will be making money off of HP? To my understanding, Melissa’s book in no way repackages, analyzes, shifts, portends, pulls from, or in any way deals with the text of the Harry Potter books. Melissa’s book is a non-fiction work about the effect of Harry Potter on the world and, specifically, the fans. Melissa put a lot of leg-work into her book, researching, interviewing, touring, fact-searching, etc., and spent MUCH more time finishing her first draft than SVA did copy and pasting his book in 2 or so months. It’s a completely different book. From what we know about it (which is really only what she’s talked about on PC), it is in no way like SVAs book. The comparison is laughable.

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oh, Bella, you know me, start a real a good argument based on facts logically organized, i’m there, ready to argue with the best of ya…but, irrelevent or personal attacks on anyone, especially those i disagree with, nope, that’s hitting below the belt ;-)

says:

This was one hulleva piece of legalese to digest! Good grief Melisa, you’re a SAINT for going through all the tedious documents (and horrib jargon to boot). Thank you so much.

I don’t think I need to add anything new, many in previous posts have pointed out the essentials. I do care about this matter and am following closely. Am too appalled to write anything coherent right now…

I’d say for the diehard HPL fans, if you really like it just print the thing of and have it binded! That’s cheap and you get what you want a printed copy… But please understand that profiting from it otherwise, is just not for RDR or SVA to benefit from.

says:

Kudos to you, Melissa, for the excellent, detailed job you did at writing this article! I’m so appreciative of all the hard work you’ve done in presenting this legal case.

I very much look forward to reading the book you’ve written on Harry Potter fandom!

says:

hello shinymac, :)

i love melissa and i love leaky (per the end of my post) i actually think it’s fine and dandy if melissa or whoever is making money on hp if it is legal. she has worked hard in analyzing of the hp world. that was my point. i think both melissa (on her book) and steve (at the lexicon) have both worked very hard.

i have nothing but love for them both, that’s all i was saying. :)

says:

it should be noted witch that melissas book is about the harry potter fandom. in it, she explores the history and impact the harry potter fandom has had. it will likely go over fansites, prominent figures in the fandom, and big moments in the harry potter fandom.

it is not a copy paste of the seven harry potter books like the lexicon is.

says:

NottheHBP: It’s about the phenomenon as a whole, and life inside it. Fandom’s certainly a large part of it, but it’s not an intense chronicling of it so much as a depiction of its chief qualities and characteristics and quirks. It’s not an insider fandom book but a general HP phenom book that has, as part of it, a depiction of fandom. And no, there are no worries about copyright with that.

Thanks again, all, for keeping it civil when possible.

says:

hi melissa and all!

i’m a little new to posting so it’s very exciting to have this conversation. :)

melissa, your book sounds awesome and i for one will be thrilled to read it! yea! :)

and hello NotTheHBP, nice to meet you too! :) i agree that RDR has changed tunes as to what they said the book was in the beginning to what it is now, (the whole: is it analyzing or not bit) but oh well, it’s up to the judge to decide all their fates now and try to decipher all this… i really feel for everyone.

sorry bout that melissa. I am still really looking forward to read it though.

The main issue here is that RDR Books and Steve Vander Ark is recorded in saying the same thing is saying that now that jk rowling has finished writing harry potter, that it is the fan’s property now. Steve announced as such to hundreds of people at a harry potter convention. RDR Books, as we now know for sure, approched Steve to publish the book. Steve, while I still dislike him now and feel he has done many horrible things, including outright attacked jo claiming she is trying to choke the fandom wrong, the fandom is intact, including the lexicon website, she is trying to stop abuse of her copyrights for personal profit is not caught in the middle of RDR’s squablings with the law.

The case is between a Author who created a entire world and wrote 7 books that are a literary phenomenom both in literal scope of sales, and the impact they had on the world, and a small town vanity publisher created to publish the owners books because no other published apperently would publish them as taken by the extremely poor quality of the books both written and published by the owner of the publishing house, roger rapoport.

RDR Books approched Steve for the purpose of bringing steve in, then profiting off of harry potter. honestly, authors tend to only get 2-5% from the sale of each book, and if they are agented, many agents take 5-10% of that, 15% often for books sold to foriegn markets which pays for the extra cost of working with out of country publishers. Steve may have aggreed for the purpose of giving a print version and not the money, but the fact that RDR contacted him wanting to do it is fairly reliable evidence that RDR did it for profit to capitalize off the success that harry potter has had. no doubt they went to steve because of the lexicon and saw that all the work was practically done so they can rush their version out as quick as possible to be the first.

Steve is along for the ride, but he still is making a few mistakes. RDR Books has now been revealed to be the root of the entire problem. of course steve could have just said no like he should have, but RDR Books didnt care about the lexicon until they saw dollar signs from it, and that is why they clearly went after steve to get him to give them the rights to publish a book version of the lexicon.

Had the book only have been a compilation of the essays on the lexicon, I would not be shocked if jk rowling gave them her blessing immediatly. but they instead, after jo has said for many years that she would be doing a encylopedia, they decided to copy/paste her books, and sell it for profit.

the matter is that there reallly is that the entire lexicon is totally in debt to jk rowling. none of it could exist if she had not created her books and world, all of which was copyrighted. fair uses really only allows the use of copyrighted material for the explicit purpose of making critical commentary of a work. using a sentence here and there to use as a example for making a statement about merits of a work, or its relevances to historical or present issues and views is a good example of what fair uses entails.

fair uses however if my reading of it is correct those not include alphabatising a text and adding in a few facts from the books. the lexicon is basically a website that list things alphabetically with facts from the book, but nothing new to add. alot of the other encylopedias specifically list things then go into detail about things outside the book, such as what myths might have inspired jo, where a name comes from, and other intellectual things. they offten explore literary tradition, and how harry potter conforms to moves away from literary genres and styles.

the lexicon does not do that.

one of the books that RDR is claiming is like the lexicon is in my hand right now. it is a enclopedia or sorts. Fact, Ficton, and Folklore in Harry Potters world. it is a good example of what a companion book encylopedia should be. it lists a great deal alpbetically and explore them both through their role in harry potter and outside. this is why this book has not been sued by jk rowling.

Jo is protecting her work, and the reason she has not sued the other people is because their works do not repackage her world, but add new insight into them. and so, this is why she is sueing the lexicon, which in website form does not add anything, it just is a free website resource for fans. turn it into a profiteering venture, and you are infringing on her copyright.

says:

@ budb, you know I don’t even understand what you said, so whatever, some people are just touchy, I don’t know could you speak in smaller words- Im not stupid but you sound like some Lawyer person that speaks Lawsuit – I even get that language form watching Law and Order. maybe its cause I have a headache. singing ” don’t worry, be happy – don’t worry be happy”

says:

welcome ” a witch ” your not alone I’m fairly new myself, nice to meet you TLC is the best HP website, it keeps info up to date really fast- as I’m sure you noticed. but welcome if you haven’t made a friend I’ll be your friend. Just as long as you don’t take Snape from me – just kiddin- LOL

says:

budb: Message me on the LL, if you’re on there. I’m under the same name. I’ll explain a bit about why so much is public record so that we don’t continue to stray off-topic.

says:

They keep saying the book isn’t going to do any irreparable harm. But it is, it’ll reduce sales of JKR’s encylopedia and reduce the amount of money she can raise for charity, money she will never be able to get back. That is the irreparable harm it does and that is why Jo has chosen to stop publication of this book.

And it WILL reduce sales. To some degree. Casual fans, and friends of hardcore fans who don’t understand the fandom themselves, will buy this book and very likely not buy Jo’s, especially if the Lexicon ends up being cheaper.

And they seem to think that copyright law REVOLVES around the fair use doctrine. It doesn’t. Fair use is a teensy weensy exception. It’s basically only for parodies and news or commentaries. The fact that this book contains direct quotations from the books and is neither parodying, reporting news about Harry Potter, or making any substantial amount of commentary relative to the amount of information taken from the books and reorganised, it’s not acceptable under fair use.

Here are some enlightening statements from Wikipedia about fair use:

Purpose and character

The first factor is about whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only “supersede the objects” of the original for reasons of personal profit.

Amount and substantiality

The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use.

Effect upon work’s value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner’s ability to exploit his original work. The court not only investigates whether the defendant’s specific use of the work has significantly harmed the copyright owner’s market, but also whether such uses in general, if widespread, would harm the potential market of the original.

In my opinion, RDR and SVA violate all of these. The “supersede” part is most enlightening. That’s exactly what they’re doing, trying to beat JKR to the punch and get their own encyclopedia out first.

But no-one has ever ordered a cease-and-desist, they say? That’s because the site wasn’t stealing Jo’s charity money, you prat. It was a free resource.

says:

thanks st mel, got it, responded….let me know if you dont get mine

says:

Wow, this is the first time I have sat down and really read into all this RDR books issue. I can’t believe RDR’s arguments. They seem to be using the fact that the Lexicon is well received by fans/Scholastic/WB/EA etc. as supprt for there case, when in fact they are the very people against the case.
Just because we support(ed) the Lexicon and liked it as a website, doesn’t mean that fans are happy to go against Jo’s wishes, and see the book in print.

says:

That was absolutely amazing: I learned a lot. This is an intersting case, as all that relate to the first amendment are. I await the turnout. Thanks for keeping me updated!

says:

Sorry to go a little off topic, but sincerely I don’t believe SVA and RDR stand a chance so… Onto more interesting things:
Melissa please, please, please give us an update on your book. Let us know when its projected publishing date is, or how itâ€™s coming along, or something! And are you planning a tour? If you are you have to come to central Florida so you can sign my copy when I buy it and I can cherish it forever along with my HP books and DVDs! Maybe you can come here to Orlando and ask WB to get you into Universal’s Islands of Adventure to see construction of the Wizarding World of HP! Also, you could make a section here on Leaky about your book! Ok, ok, I’ll stop smothering you with my requests :-P but please give us a more info! THANKS A LOT!

says:

Felipe, this isn’t the place, but I promise when there’s actual news about the book I’ll post it. I’m still editing, so it’s nascent. There’ll be updates in the next few months. But thank you very much for your interest. :)

says:

wow, melissa is up late into the night. wonder if she has been writing like me. i find night time is the best time to write without destractions.

but to get back on topic. I take it the exhibts up on the website stating they were filed in hard copy are the text of the lexicon book? guess they dont want people to read it and the story of just what it exactly is to get out so people know RDR Books is in the wrong.

i was wanting to download all the files, print them out, take a picture of me waving it, and mail it to RDR Books with the caption of “hahahaha, even in the extremely unlikely chance you get to publish it, I already have a near completely copy without paying! HA! yay for taking a stand for decency in the world of creativity.”

says:

Wow, Cheryl Klein seems like a very sweet person, and it sucks that it’s being used against her! :(

I’m completely willing to wait 10 years or however long it may take for Jo to finish her encyclopedia exactly how she wants it. :)

Thanks Melissa for keeping everyone up to date!

says:

cheryl klein from what I have seen of her, through her visits on pottercast, and through her website which is a must for any writer because she really has alot of helpful information on it, is a really great person. I agree, it is disgusting how RDR Books is useing her.

just because they say she thanked steve for the sight does not mean she is saying she supports RDR books publishing a copyright infringing encylopedia after repeated and frequent cease and desist from the people who own the rights to harry potter.

RDR Books is becoming well know for their shadey dealings and thier illogical out of the norm publishing tactics. they have done about faces, meaning one of their not contradicing statements in perjurius, which is a federal crime. I would not be shocked if the judge fines them for defrauding the court by filing contradictory documents.

its also laughable that it seems most all of their lawyers working on their case are not actually legitamate lawyers, but 1st year law students, some who apperently havent even finished their first years in their entierty. no, RDR Books will be in alot of trouble by the time this is all done. the fact that they have to resort to students, instead of real lawyers makes me think no legitamate lawyer was willing to touch the case.

says:

It is a shame that Cheryl is being used in this manner. I refer to TLC for their HP news all the time and am very appreciative for it, but just because Melissa thanks all of us for participating and keeping things civil doesn’t mean she’s giving us permission to download from the site in a print format and creating a for profit book out of it.

BTW, it’s not unusual to have first year law students et al to do the majority of grunt work on legal cases. It gives them practical experience in hunting case law, preparing papers, and filing motions, etc. RDR does have full fledged attorneys who’ve passed the bar to represent them in the court room.

says:

Not everyone (meaning Steve and RDR) have the resources for the kind of legal advice and research time a case of this sort requires . . . especially gong up against a billionaire author and her billionare corporate partners. Some, possibly many, of the law students in question may very well be doing this work because they believe an important and negative precedent would be set by a victory for Jo. If their work isn’t as coherent and well-organized as the plaintiff’s, that’s hardly surprising.

Nobody is going to NOT buy Jo’s Scottish Book because the Lexicon is in print. (It will be a lot less useful as a wooden brick than it is as a website.) Nothing I’ve seen in this suit convinces me Steve’s work isn’t coverable by Fair Use doctrine as we’ve always known it—and if Fair Use is going to change, we’d all be better off if it changed in a more liberal direction for once. I hope all of our love and respect for Jo doesn’t blind us to the love and respect we owe Steve and free commerce of iseas.

says:

we don’t owe steve a lick of respect for his book. For his free site,sure, if we’re users of it. But if they win this case it will be the end of the free flowing fandom as we know it and for that we should not be grateful. Of that we should be frightened. Let us not have respect for Steve’s website blind us into thinking up’s rights should be compromised. That would be the real bad ending.

says:

“If [SVA/RDR] win this case it will be the end of the free flowing fandom as we know it.”

That’s not something that occurred to me . . . I still don’t see it. Can someone explain who is hurt and how if the Lexicon is printed and published?

says:

Interesting comment re: point 4—

Skipped over George Beahm’s “Fact, Fiction and Folklore in Harry Potterâ€™s World.” I don’t know what he’s done for HP, but I know he’s done 4-5 books on Stephen King. I own 2, as I’m a big fan, and used to write reviews and readers’ guides of King’s works. One’s a biography, one’s a photobook with geography, one’s an encyclopedia (with several updates, as King keeps writing). All of them encompass appropriate additional items: photos of landscapes and homes, newpaper clippings, copies of SK interviews, bibliographies, adaptations, etc.

All in all—Extensive Research! (like Moody’s Constant Vigilance!)

SVA and RDR would have saved themselves a world of hurt if they’d taken an academic approach and do the hard work. The best they could manage with their website would be a concordance—like a dictionary: on what pages does the term “accio” appear in the novels? This helps a writer or critic, and helps to identify themes. But it’s pretty dry reading and would likely sell only to libraries. On the other hand, it’s easy to do with a computer. And what have we learned about doing what is right or what is easy?

says:

Loren: It’s been explained before (several times, in fact), but to make it short. (One) of the RDR arguments why this book should be permitted is that JKR (and WB) didn’t mind the Lexicon site (that they actually approved of it) and that that means the approval should count for the book, too. So, they are arguing JKR (by not objecting to fannish activity) weakened her own copyright. If this is confirmed by the court (she allowed the site so she should have no problems with the less infringing book, since book is supposed to have lesser % of directly quoted JRK material – but I didn’t count), then JRK is basically lost a huge deal of rights and lots of books like this could follow. She can try to forbid fannish activity in the future to protect what is left, but that’s not the most important thing.

The big deal is, there are other authors (and if not them, then certainly their publishers/agents etc) watching this case and if they see a big author losing part of her rights because she was lenient with the fans on the web, you can be sure there will be lots of interest to close all fan sites – trivia/fanfiction, you name it. They will have to, since there will be a precedent and they’ll risk losing parts of rights to their work if they don’t. This is so much not limited to HP. It could relate to any book, TV series, movies, you name it.

says:

Evalita—many thanks. I’m not sure that I understood who would be harmed and how from your reply though. I think you are saying that JKR will lose rights if SVA/RDR win, and that it will have some chilling effect on artists who are afraid of losing rights as well, and so artists will avoid or hinder or crack-down on fansites and fandom. Is that right?

I suppose I do see the point. But the rights in question, the extent and meaning of Jo’s copyright, are things that are being established in this case—it seems to me it is being defined and determined: if the court rules for SVA/RDR, it is saying JKR doesn’t and didn’t have the right being claimed in the first place.

I think there will be a much greater ‘chilling’ effect on fandom if the fair use doctrine loses, and JKR can claim that the Lexicon actually causes her material loss. But admittedly, it’s just my opinion.

Thanks again.

says:

I searched for all the articles related to the suit on Leaky … I found like 12 articles. but when I try to post the links here … it just doesnt post. It doesnt even give me any errors … am I doing soemthing wrong?

says:

Well I searched for all the suit related articles on Leaky â€¦ These are in chronological order.

ok … I had to remove ‘http://’ from the links and then it posted. so if anyone wants to read them they will have to copy paste the link on the browser and add ‘http://’.

says:

To Corrine,

Melissa will probably yell at me for this (even though she doesn’t know me), because, I know, she needs no defence. However, the fact is, if you take the time to read the actual briefs, and not just the precis that is published here at Leaky, you quickly realize that the reason Melissa is commenting on what RDR is saying is because they are NOT backing up their assertions with appropriate references, or are, in fact, contradicting their own earlier statements. What Melissa is adding is the WHOLE story – something that isn’t necessary from the WB/JKR side, for the most part, because they DO back up their assertions with statements that are not internally inconsistent.

Further, a careful reading will show that, when warranted, Melissa HAS added explanatory information to “JKR Brief” statements, and has noted that in the interest of fairness she has clarified some RDR staements that might have been interpreted in an even worse light than they already are.

Her journalistic effort is actually amongst the fairest I’ve ever seen, and what’s more, she could just as easily have made one and only one statement when all this started. She could have said “sorry, I will neither comment, nor even report on ANYTHING to do with this case – it is potentially a matter of litigation and it would be wrong to get involved in any way”. After, what I’m sure, was a very careful check of her conscience as well as the legal issues, and findind both to be clean, she chose to report impartially. Three Cheers, I say!!

M.

says:

@Loren

It actually see it as the opposite. JKR winning would seem to be keeping in step with the current standards for Fair Use and an RDR win would seem an expansion of Fair Use .

For example the copyright suit involving a Seinfeld trivia book that was found to be copyright infringement. It was primarily fictional facts from a tv show rearranged as a trivia quiz.
From the court documents the lexicon book appears to take fictional facts from the HP books and rearrange them a-z to form a glossary.
Fair use looks at the amount of derivative material (i.e. quotes, paraphrasing) compared with original material or material from other sources. The lexicon book does have some materials that are not from the HP books but it appears that the majority is info straight from the books. (Having nearly every detail makes it a good lexicon but not a good candidate for Fair Use.)
It is my understanding that glossaries, concordances and the like are not considered Fair Use and need the copyright holder’s permission.

says:

Loren,

I commented on the issue of “the chilling effect” on one of the earlier updates from Melissa, so let me try (btw Evalita, nicely done):

Imagine you’re a writer of what could be a series of books to be published over several years. You see the precedents set by Stephen King and JKR and others, and hope that your book(s) get the extra boost of fandom and discussion and so on, so you either encourage, or at least don’t discourage, fan sites and all that that entails.

Now, if RDR wins, and, as you point out, helps to establish that Artists/Authors do not have rights over their own material and creations unless they prevent ALL use of it ( that would essentially be the result here), why would you allow fan sites? Once they appear with any of your material on them, you lose the right to it, and anything else associated.

Why remain silent about, let alone encourage, the existence of fan sites? Why wouldn’t you simply make an upfront statement that any fan site is NOT sanctioned by you, and any of your material appearing on such a site is illegal use because you don’t give permission. This would in turn force a more definitive (and I don’t say liberal or stringent because it could be either) interpretation of fair use, and maybe this gets finally resolved 50 years from now, with charities, budding authors and many other possible groups and individuals affected.

As far as the fair use principle is concerned, I couldn’t agree with you more regarding the need to clarify it, and set some very specific guidelines. The problem is that it is ONLY a US copyright law principle (although other countries have similar though unique approaches). This is a GLOBAL phenomenon, and therefore a GLOBAL issue. I think what happens is when a situation becomes so wide-reaching, and could have such impact on so many jurisdictions, you tend to leave the guidance somewhat vague, and therefore subject to legal opinion and decision, which will vary from jurisdiction to jurisdiction.

Don’t know if this helps, but sometimes its good to put yourself in the situation and see if it makes sense.

says:

Morton Kaiserman

Well said! Melissa is a role model for aspiring journalists! Cheers.

says:

Morton, thanks, and well put. I do have to say that I did not mean to point out or suggest that Artists/Authors do not have rights over their own material and creations unless they prevent ALL use of it, or that that was what an RDR victory would mean. JKR/WB did not try to shut down the Lexicon website. Well and good. But they are trying to stop print publication of the same material. If RDR wins, it means that Artists/Authors cannot shut down similar websites, just as they cannot stop similar publication. However, if JKR/WB wins, it means they COULD have shut down the website. It means Artist/Authors hold a sword of Damocles over all fansites. Is the Lexicon book fair use? If so, so is the website. The question is not whether SVA makes money—the question is whether JKR loses money. And there are a few ancillary questions about print vs. electronic publishing.

There are few people in the world I admire more than Jo, who I hold up as a role model to my daughter, particularly in the way Jo has raised vast sums for charity, and has embraced fansites like Leaky and Mugglenet and (until this fracas) the Lexicon. She is perfectly within her rights to sue Steve for copyright infringement. But in looking at the material involved, and the HP commercial universe as a whole, I also think Steve is within his rights to publish the Lexicon in book form. This conflict of rights is NOT a no-brainer. The court will need to decide.

I don’t think Steve went about this in the best way, and I suspect he’s been poorly served by RDR in all this—but whoever wins here, someone who’s provided a lot of good value to me over the years is going to lose. On the whole, it’s (just) my opinion that the fandom (read “the public”) would be better served if Steve were allowed to publish the Lexicon.

says:

I understand your point Loren, but I think you yourself noted the difference here. You stated that if the BOOK is fair use, then so is the SITE. This is actually part of what RDR is trying to assert – that if one was allowe why not the other. But they approached it from the perspective that if the SITE was allowed, why not the BOOK – the reverse of what you stated.

However, it is, from either direction a faulty conclusion. In fact, the SITE and the BOOK are not the same. The site contains SO much more than the book does. Taken as a whole, the site meets the guidelines for Fair Use. And remember that one of the 4 guidelines contained on the US Office of Copyright website regarding the doctrine is whether the alleged infringement is a revenue generating item. The website is not, the book is.

So it actually is not possible to equate the site and the book and draw causal conclusions. If the book was a COMPLETE transctiption of the Site, there would be no law suit, because the site has a lot of commentary and other original material. The Lexicon itself would be an integral part of it, and very likely within even a very stringent interpretation of fair use. Or, alternatively, if SVA had decided to publish the book and distribute it free of charge, again, it is unlikely that an allegation of infringement would stand. Ah, you may ask, why would anyone put so much effort and time into a book and then give it away? Exactly! Why indeed?

M.

says:

Loren,

I wanted to add that the Sword of Damocles point is an interesting one, because I think you may be right that the threat of shutting down a fan site might exist if JKR/WB wins. However, I would hasten to add that the issue is really very complex and that it is a possibility only under certain circumstances. Remember that JKR is NOT threatening the website – never did. And if there had been an original request for permission, directly, then I am confident that a compromise might have been reached.

I truly believe that there is no doubt that JKR/WB view the website as fair use, because not ALL of the copyright/fair use doctrine criteria are violated. But if RDR wins, then there is NO hope for any author to benefit from the word of mouth and discussion and so on that takes place on a fan site, becaue the concept of fair use becomes more broadly applied and less easily defined. The result might very well be what I suggested above, that an author’s creation is taken from her, and rendered unavailable to her for future use. Isn’t that what RDR tried to do by countersuing JKR and saying she couldn’t use her own information in any format (when they tried to claim that the timeline was SVA’s creative output), even though anyone could have come up with a timeline.

Ah, Loren, to paraphrase you somewhat, there is NO winner regardless of the Judge’s decision and we are ALL losers already because of this unpleasantness. Sad, but true.

M.

says:

Morton, I don’t disagree with anything you’ve written. True, it is not possible to equate the (complete) website and the book according to the present guidelines and legal precedents. I certainly do not think RDR’s legal tactics are likely to prevail if the court holds strictly to the guidelines.

But it is the environment for litigation after a JKR/WB victory, the perception of artist’s agents and the popular press, and how these may actually play out that disturbs me. Perhaps no one could successfully sue a website like the Lexicon to have the dictionary/encyclopedia portion taken down (leaving the fan essays and commentary behind), but they will certainly be more likely to try—and sometimes (given the Goliath vs. David nature of such conflicts) no court decision would be necessary for victory.

I believe the Lexicon book deserves to be classed as fair use on its own merits—which go a bit beyond counting percentages, and that its publication simply does not represent damage to JKR/WB, given its current availability in another form. We’ll see what the judge thinks.

says:

It is probably worth remembering that this case isn’t necessarily going to end in a win for one side or the other, JKR/WB could win on some points but not others. If it is determined that the Lexicon book is fair use, that could be good for fan sites which might also be able to fit in that definition of fair use. If it is decided that the Lexicon can publish the book because JKR didn’t object to the same information on a website then that is bad for fan sites, because firms like WB would have to try to close down fan sites to protect their interests.

says:

@ Loren

So you feel that the main judge of fair use should be whether or not a highly derivative work would hurt the copyright holder?

That’s an interesting POV. Personally I fee that the most important aspect of judging Fair Use is how you use that original material. To me that makes the difference.
Copyright exists to let artists claim their original creations. Fair use exists to let others use works to springboard their own original works like parody, criticism, analysis.

I just don’t believe the lexicon book I see in the court documents is creating something truly original.

says:

â€œEven ifâ€ it was a â€â€™reproductionâ€™ or â€˜derivative work,â€™â€ JKR/WB would have to â€œshow substantial similarity between the Lexicon and Harry Potter Works.>>

Wow, there’s no way they could do that!

says:

guys, to explain what fair use allows, fair use allows the creator of a commentary or critisiems of a work to use small ammounts of said work as the basis of the commentary or critiq of said work.

this means that the vast majority of the work requires it to be commentary or critiq, with the far lesser majority of the work being quotes and references.

every book listed by RDR as evidence actually follows fair use. one Example fans have been useing in discussion was fact, fiction, and folklore in harry potter, which is a encylopedia where the writer listed various themes and inventions in the harry potter books and through research looked for relevant mytholagy and history and the like to show how jo might have gotten her inspiration. 95% of that book is research done by the auther to give readers more insight into how much jo incorporates mytholagy and folklore and other elements into her story. they rarely quoted directly from the books, and wouldd often give one or two sentences to explain the entrys role in harry potter, then a paragraph or two to explain what might have inspired it.

RDR Books claimed in their refusal to give a copy of the manuscript to the copyright holders, that if they want to know what the book is, then go to the lexicon and hit the print button. this shows that the book they were marketing is not counted as fair use, andd 80-90% of the harry potter lexicon is regurgitation of facts from the book, presented on the site in a free non for profit way. by putting it in book form, it now becomes infringement because it those not provide sucficent commentary or critiq to make up the bulk of the site and therefore the book.

Steve Vander Ark only had a month to shave the book down from 1000+ pages to a 400+ page manuscript. that does not provide sufficent time to add the vast near complete majority of commentary or critiq required under fair use to allow use of copyrighted material to be used.

the other encylopedias on harry potter still in print are allowed to be in print by jk rowling and warner brothers because they remain in line with the law as it stands. some of the out of prints might be out of print because they were asked to cease and desist because they didnt fit within the law. RDR Books is demanding that the law be changed for them, so they can publish a book that in its current form, and the current form of the law, is not legal under fair use. they are trying to use the case to give them free reign to seize the rights of other authors for their personal profit without having to conform to copyright law is it currently stands. they are seeking to win so they can gain more control over copyright, and premptively supercide jo’s copyright and encylopedia.

they are sharing steve vander arks view from when he said jk rowling dose not own harry potter anymore, the fans do. you can find him saying that on youtube.

says:

It was just a miscommunication. I’‘m a supporter of both sides. SVA/RDR (remember RDR is in on it too) and JKR/Wb are neither right nor wrong!
Geez

says:

I’m not a copyright expert, but based upon my understanding of this complex set of laws, I think some posters are getting side-tracked by the existence of other, supposedly similar books (and my apologies – I’ve only read to page six of the comments, so perhaps someone has already addressed this).

I think it was actually on one of the threads discussing this topic where I read that granting permission for the creation of a derivative work doesn’t create an automatic license for future creations.

Some posters have pointed out that some of the workd cited by RDR as examples of existing reference books or lexicons are out of print, therefore they must have been unauthorised. However, it’s also possible that JKR simply granted permission for those works to be published. Just because she did so, doesn’t mean she’s obligated to grant permission to others – and she doesn’t have to have a good reason to deny permission (as long as there isn’t a considerable original component – in which case the publication can stand on its own merits as an original work, as Melissa’s work and certain analytical pieces no doubt do).

In many popular ‘universes’ – Buffy, Star Wars, Star Trek etc – there are authorised exra-universe stories – essentially legitimately-published fanfiction. Stories about the characters that are not considered canon. The creators of the characters upon whom the extra-universe stories are based gave PERMISSION for these stories to be written, but that does NOT weaken their hold on their own creations. In other words, George Lucas authorised certain extra-universe stories about Star Wars – but that does not mean he has any less legal grounds to fight unauthorised publications using his characters – even though they are full of original material!

Furthermore, IIRC (again I think it was from one of these discussions), the tacit approval of copyright-infringing material doesn’t dilute a copyright holder’s rights to fight copyright infringement in other situations. For instance, although JKR has allowed millions of fanfiction stories to exist in very public fora, if I decided to publish ‘My So-Called Life – Severus Snape’s Early Years In His Own Words’, the existence of fanfiction wouldn’t make my claim any more valid.

says:

Exacctly medea, copyright law gives the right of the copyright holder to judge each case on a case by case basis. hense why jk rowling often gets companion books sent to her. her people go through them to make sure that they are allowable, and often will be given a seal of approval because it deals with commentary and critisecsm. hence why they were asking before the lawsuit for a copy of the lexicon manuscript, whhich RDR Ignorantly denied them over and over as if the creator of the work in which the book is totally 100% based on has no right which actually, in full legality of the law, has.

jo is not fighting against companion books, but she wants to make sure the companion books allowed to be published add insight and discussion to her world, not reorganize it simply for profit when all that information is avalible for free on the internet.

says:

As an intellectual property attorney, I am amazed how biased this story is. I love these books as much as everyone else, but can’t you see there is more at stake then one encyclopedia? If we let the courts get rid of fair use in the U.S., then fan sites and other fan-created content will be in jeopardy too. Would you want authors to be able to shut down your fan sites? Your discussion boards? Forget fanfic, it’s a clear copyright violation.

says:

Anon. JK Rowling has made it clear that the fansites are not in any danger right now. She is fighting someone trying to make a personal profit off of her work without adding anything creative to it. the lexicon according to RDR Books is basically a print version of the website. given that, it means the lexicon book, like the lexicon website is simply a rehashing and reorganizing of her copyrighted work.

She is not against companion books, as long as they add new insight and commentary/critiq to her works. she often grants permission to companion book writers because they do that, and stay within fair use laws. the lexicon, in how RDR discribed it before doing a 180n about face those not qualify as fair use, as according to them, it was just a reorganization of her copyrighted works.

a month is not enough time to take a website that is a complete rehash of the harry potter books reorganized into alphabetical listings, and turn it into a book which adds commentary that was lacking on the website for all the entries included in the book.

steve requested jk rowling gave him a job, she refused, and this is why he is doing this after spending years saying it would be illegal to do what he is now doing. he is spiting her for not putting him on the payroll.

says:

@ Jas who said: People in glasshouses should not throw stones and many of your â€˜unbiasedâ€™ comments verge on slander. If you cannot report in a truly unbiased manner, then you should not be making such commentary and certainly not without first seeking the advise of a lawyer who is well versed not only in copyright but also the dangers of accusing someone of perjuring themselves. You are welcome to e-mail me if you want the names of some suitable lawyers.

Printing allegations that are malicious or damagingly misrepresents the facts is called libel, not slander [which is spoken].

I’ve no doubt that Melissa can/will provide proof of her statement should that become a necessity.

SVA has tried to quantify his declatory statement in regards to this issue on his site in the ‘What’s new?” section. He does not deny that Leaky hosts the Lexicon at their expense.

@anon who said: "I love these books as much as everyone else, but canâ€™t you see there is more at stake then one encyclopedia? If we let the courts get rid of fair use in the U.S., then fan sites and other fan-created content will be in jeopardy too. Would you want authors to be able to shut down your fan sites? Your discussion boards? Forget fanfic, itâ€™s a clear copyright violation."

As an IP attorney, which you state you are, would you be the least bit concerned that Roger Rappoport doesn’t employ an IP attorney? From Nov. 8, 2007: “A new document authored by a recently retained lawyer for RDR claims that owing to RDR’s lack of an intellectual property lawyer, status as a small publishing house (it claims sales of a little more than $100,000/year), and present plan to have legal briefs prepared by a cousin of the house’s owner (not an intellectual property lawyer), a delay in responding to JKR/WB is necessary.”

How could he assure SVA this book wasn’t infringing when he had apparently not employed an attorney who specializes in IP until after the lawsuit commenced?

Having read all the court exhibits of the proposed book, knowing that the original content on the Lexicon, like fan essays/commentary as well as fan generated chapter summaries and fan art [which are not owned by the Lexicon] are not included in this book, takes originality out of the equation. The book [as seen in court documents] is unoriginal and slavishly copied. It is not a fair use of copyrighted materials by any stretch of the imagination.

JK and her attorneys have worked to allow fansites freedom. Someone mentioned the ‘Sword of Damocles’ and her potential to close fansites should she prevail. Well, that’s a double-edged sword. If JK wins, the websites and fan-based communities will continue as they are. She and WB have stated clearly that they’ve no intention of stifling those sites as long as they remain open and free to all and do not promote infringing activity.

If JK loses, she’ll have no choice but to close sites and limit fan-based activity to prevent further loss of her copyrights. Many other authors, artists, etc., will follow suit to protect their intellectual property by controlling what, if any of their content, may be used on the world wide web.

A win for JK protects the status quo. A loss will be detrimental to the fansites.

says:

I forgot to include the link to the article regarding RDRs lack of an IP attorney. That court document can be found here:

I really don’t think Jo is going to go around trying to shut down fansites en masse no matter what the verdict here. She is a reasonable person who has always acted responsibly and shown good judgement, in my opinion.

The danger to fansites is not from Jo, specifically, and it’s not from an RDR victory. I know JKR/WB want and try to cast this as a narrow ‘book only’ lawsuit. They say it has nothing to do with the website, which was fine. But unless the judge throws out, without comment, all of the web-related evidence introduced by SVA/RDR (which is highly unlikely) then the judge’s opinions on the applicability of copyright to that material (whichever side he decides for) will become precedent for most internet copyright cases in the future.

If he judge rules for SVA/RDR, it will be seen as the looser, more free publishing rights environment of the internet flowing BACK into print publishing; if he rules for JKR/WB it will be seen as the more restrictive rights environment of the print world being EXTENDED into the world of internet publishing.

We are living in and benefiting from a golden age of internet publishing, my friends, especially the fandom; there was a golden age of print publishing once, too, but it’s done. Once again, I love Jo and want her to have everything she’s gotten and everything that’s coming to her—but we really need to try to see the forest for the trees here, and it is NOT an SVA/RDR victory that would pose a threat to fansites.

says:

How can one see the trees if they fail to pull their head out of the sand first?

A loss WILL destabalize current Fair Use law. You said it yourself, it would make current copyright laws LOOSER, as in less stringent. A loss sets legal precedent that currently does NOT exist. A loss WILL change things for the worse, not the better.

A win on JKR/WBs behalf retains status quo, it does not alter anything in regards to legality or copyright or make it more difficult for others to publish derivative works. It means derivative works will have to continue to meet CURRENT legal Fair Use requirements.

Who in their right mind would allow their property [their livelihood and future earnings] to be viewed/discussed at length on the web via fansites only to have fansites claim that simply allowing them to exist cancels out the IP rights of the originator of the material? That they may now do as they wish with material that comes directly from the originator?

I certainly wouldn’t allow my property to be ripped off in such a manner and I don’t know of anyone else who would either. If you owned something of equal importance or value such as Harry Potter, would you risk losing it by allowing fansites to continue in any form that may be even minutely construed as infringement? Or would you take every measure to minimize and prevent further loss of your property and rights against said infringers? The latter is a very real liability should JK lose this case.

says:

When we talk about ‘current Fair Use requirements,’ we need to remember that there is no statutory definition involved. The law involved is case law, a set of precedents established in court cases like this one. The law is not set—it is being made in this case, as it has been made in previous cases. The law will be changed by the addition of this case as precedent whichever side the judge rules for. To the degree that there are ‘current’ guidelines and accepted principles of fair use, these used to be much less restrictive by virtue of much shorter and less stringent ‘copy rights’ allowed to creators. I don’t personally believe it would be good for the fandom for any further extension of print copyright practices into internet publishing. That’s all.

says:

I wish the Stevebashing would stop. he (and the staff) has made an invaluable resource for Potterfans, he may be guilty in trying to make some money from their work, and it may be against copyrightlaws, but is it that awful?
Personally I guess that there won’t be a winner and a loser at the end of the lawsuit, but some sort of allowing the book to be published with some changes.
Neither Jo nor Steve are the ones who are talking in those briefs, they are probably written by attorneys, so don’t read anything into them about Steves or Jos thoughts in the matter.
We will just have to wait and see what happens, in a few weeks we will all have more facts to talk about.

says:

Knowing JKR’s liberal bent, isn’t it interesting that in this case SHE (+WB) is the big corporation going after the little guy?

says:

@ Loren: Print, as in book format? Books are just one medium of printed expression. Internet is another medium of printed expression. Why should the law apply to one medium and not the other? They both print, they both publish, they both copyright.

Copyright exists to protect IP owners in EVERY medium, not just book print. Copyrights exist for the internet as well. Laws for copyright use have been adjusted through the courts over the centuries as legal necessity has demanded.

A website can copyright itself, what it cannot do is copyright material which is already copyrighted by someone else. It also cannot legally take copyrighted materials, put it into a different medium thereby claiming it as uniquely their own, and then sell it for a profit.

If that were to change via a win for RDR, then anyone can take copyrighted materials off of the web and sell them, with the copyrights of the owners being trampled in the process. They’d have no recourse but to crack down to prevent further loss to themselves. Nothing that you’ve stated has altered that reality.

@ Mikkel: I've certainly not engaged in Steve bashing.

Had you read the briefs you’d have read statements declared from both Jo and Steve, as well as attorneys and many others.

As to his making a quick buck, illegally, off of Jo, WB, and the Floo Network [which includes TLC], then YES, that’s awful. People don’t like being used, stolen from, or lied to.

Now, could all of this be out of his hands? Absolutely. Court documents show that he took precaution against infringement lawsuits, by having RDR take the added, and highly unusual step, to indemnify him. Court documents also show his contract with RDR, in which it clearly states he’d make a profit off of people clicking links in the Floo Network to purchase his book. That information was not disclosed to Melissa Anelli, one of the webmasters of the Floo Network, profits to be split equally between RDR and SVA. Could he have just forgot to mention that to her and always intended to profit share? Sure. But ask yourself this: If he signed this contract in August of 2007, why did he not disclose that information to all of the Floo Network Webmasters? It’s been six months now, surely that is sufficient time to have done so.

Frankly, RDR is fairly shady in their practices, that is clearly shown in the court documents. One could hope SVA just got in over his head. As you’be said, we’ll just have to wait and see.

says:

I’m no fan of RDR, and feel similarly about SVA. In any case, the difference between print rights and internat rights is profound. US copyright law changes over time, and applies, theoretically, to all forms of copying, print and internet. There is also China, where they’ve operated for decades with NO copyright laws. And there are countries with more stringent laws, where ‘fair use’ is not protected. If I publish a book in the US, US copyright laws apply. But if I publish on the internet, what laws apply? The country where my workstation is? The web server? The Pay Pal server? The legal environment is totally different. It’s hard to litigate in the internet environment. I am hoping the judge in this case does not publish an opinion that makes such litigation easier—or frankly, even APPEARS to make such litigation easier. I think that is less likely if the ruling is for SVA/RDR (regardless of the merits of either side’s case, neither of which looks particularly strong to me).

says:

“Had you read the briefs youâ€™d have read statements declared from both Jo and Steve, as well as attorneys and many others.”
And you think that an attorney haven’t had any say in what Steve’s and Jo’s statements said?
If Steve has tried, as you say, to make money by illegal means it IS awful, but it seems to me that any attorney worth his pay would have counselled RDR to drop the book if the matter is as doubtful as that.. They won’t make money on a lost lawsuit and certainly not on a book which never is published.
Yes we will have to wait and see, luckily it will soon be over, and we can go back to discussing whether Harry was master of the three hallows (and so of death) or not ;-).

says:

Copyrights are protected by laws in the country of origin and also by the Berne Convention and the Universal Copyright Convention.

JK has copyrights registered in the UK and in the US, and when infringement occurs, whether internationally in print or on the internet [such as ebook format] it is stringently defended WORLDWIDE. WB provided information in regards to cases they’ve pursued worldwide in the protection of Jo’s copyrights, and there have been several well publicized instances of infringement lawsuits internationall on behalf of JK, specifically one involving ebooks being sold on India’s ebay.

Should you publish on the web, that creation is your own, provided no one else has copyrights to material you’ve published. It is your responsibility to protect it. You have to declare no one can copy or imitate it without your express permission. If you find that someone has done so and are making money off of your creation, then you are entitled to remuneration. If no money is forth coming, then you are entitled to seek legal remedies to halt the infringing behavior and be compensated for it. Yes, it may be harder to pursue, but it isn’t impossible, and certainly no reason to alter the status quo.

If RDR wins it would dramatically alter the law, making it more difficult to defend copyrights of everyone, and ultimately make things worse for the internet.

Say Steve gets to publish his book. Say that some people take his book, make their own website dedicated to it, using 95% of material attributed to him. Then say the owners of that website, who’ve copyrighted their site BTW, decide to slightly alter it and then print a small portion of iit and sell it in book format. SVA, as a course of winning this suit, would have no legal remedy to stop that infringement of his work. Why? Because this suit would have loosened copyrights, making them even harder to defend than they already are.

No one’s work would be safe, despite copyright laws. That’s not being an alarmist. It’s speaking the plain truth. A win would have chilling consequences that have the potential to alter the internet detrimentally.

says:

“And you think that an attorney havenâ€™t had any say in what Steveâ€™s and Joâ€™s statements said?”

As a legal secretary, I can honestly say that attorneys walk clients through testimony and help them polish it, this allows one to give clear and concise testimony without appearing nervous, fidgity, or unreliable. This in no way means the attorneys have told their clients to lie under oath. Those declarations were made under penalty of perjury. It also in no way alters the evidence submitted by attorneys of both plaintiff and defense.

As for whether RDRs attorneys would/would not have counseled their clients on proceeding to publish is open to debate. Especially when you realize that RDR did not employ an Intellectual Properties attorney or for that matter even have regular council to represent them at all. They didn’t get council until AFTER WB/JKR filed for the preliminary injunction.

How could they reassure SVA this book was legal, when they apparently never employed an IP attorney to check it out in the first place?

says:

Anon1, I don’t disagree with any particular point of law. I disagree with your opinion as to whether an SVA/RDR victory or a JKR/WB victory would have a more detrimental effect to the free flow of information on the internet as we know it. That will depend greatly on how the judge applies the law to the evidence presented. For what it’s worth, I hope you’re right and I am wrong. But I still wouldn’t be willing to bet on it.

says:

“How could they reassure SVA this book was legal, when they apparently never employed an IP attorney to check it out in the first place?”

Good question, but wouldn’t you, with your opinion of the case, have counselled RDR to drop it as fast as possible, when your counsel was sought?

Of course attorneys don’t tell their clients to lie under oath, or at least no honest attorney would, but as you say, they will help ‘polishing’, you can’t really say anything about anyone’s feelings about the case from what they say in court. The statement will be what the client have told the attorney, shaded, more or less heavily, by what the attorney believe will be to his clients advantage.
(Or at least that’s my experience. In Denmark, not in USA, if that make any difference )

says:

JKR/WB would be right if they’d injuncted other books as well.
RDR/SVA would be right if they’d abode by the first questionings of JKR/WB and they ‘d still be sued.
Now it’s just a cat fight.

says:

anon1 said –
A website can copyright itself, what it cannot do is copyright material which is already copyrighted by someone else. It also cannot legally take copyrighted materials, put it into a different medium thereby claiming it as uniquely their own, and then sell it for a profit.

(block letters below are mine, for emphasis)

This is only partially true. The issue, as I’ve always maintained, comes down to permission. My organization routinely publishes material already under copyright under OUR copyright as well, AND sells it for money (we are a not-for-profit so we don’t make a profit, although we do earn excess revenues over expenses to plow back into our business).

There are 2 key point. The issue, first of all, is not only the actual intellectual property, but the presentation of that property. So when we publish, we are copyrighting the material IN OUR FORMAT , which is a recognized format that is automatically associated with us. If another organization wants to publish all or part of the material from OUR format in THEIR format and copyright it, they can ….

As long as the second, OTHER issue is taken care of, which is the matter of PERMISSION. We cannot simply repackage the other material and publish in our format and claim copyright, and we certainly cannot sell it, UNLESS we obtain either copyright permission or license from the holder of the copyright.

This is what I have contended really is the crux of this whole matter. And even the US Copyright office points out that because Fair Use is such a difficult concept to interpret at times, it is best to get copyright permission ALWAYS.

Having clarified this point, I have also always agreed that a win for RDR could have exactly the chilling effect you describe for exactly the same reasons (and I have posted as such earlier in this thread and in the thread that ensued from the earlier report in the Leaky news). Please note: this MY opinion, and it may be shared by others, but it does not necessarily represent the reality that will arise once the final ruling is made and any subsequent appeals are dealt with.

Snape’ Mistress said
JKR/WB would be right if theyâ€™d injuncted other books as well. RDR/SVA would be right if theyâ€™d abode by the first questionings of JKR/WB and they â€˜d still be sued. Now itâ€™s just a cat fight.

Well, maybe yes and maybe no. It is not usually a good idea to try and use circumstances that are similar but not quite the same as sources of support, which I think WB lawyers understand. Each case has to be judged on its own merit and there are ALWAYS differences that will play a role. I think in this instance, you have other HP-related books, yes. But they are CLEARLY under the Fair Use principle, because they contain substantial original material and/or analysis and/or commentary – the very reason for the Fair Use principle. Further, we have no real idea in any of the other cases whether permission was sought and granted, or not. So to say one or the other side would be right if… is simply not as simple as it may seem. And you are absolutely correct. Regardless of the circumstances, the paperwork already filed has “cat fight” written all over it. Sadly, this is not unexpected.

says:

I’d like to start off by thanking Melissa for sharing and summarizing all of the legal information and details surrounding this case. I feel I’ve learned way more about copyright law than I’d ever imagined I’d need to know through reading these articles and posts, and offer my appreciation to those who dare to share “material from [their] creative mind[s]” with the rest of the world.

As I’ve been quietly following along through the news posts and comments, and I’m starting to believe that there are NO winners to this case anymore.

I am particularly new to the “fandom” aspect of Harry Potter, though I’ve enjoyed the books and movies all along (well, since 2001, anyways), so I haven’t invested much of my own time into fan fiction, fan videos, websites, commentary, podcasts, or wizard rock. I DO love what other fans have taken time to put together, and don’t mind supporting their efforts monetarily so that they can continue doing what they love to do – for example: by buying CDs from WRock bands or by using the Floo Network’s links to purchase HP related items.

That being said, would I purchase SVA’s printed version of the Lexicon should it be published? Most likely not. I’ve only just recently purchased a full set of the HP series for myself, so I won’t have to keep borrowing from friends or libraries when I want to reread the series, and haven’t bought or read any of the other commentary books currently available. If it had successfully slipped under the radar and was published without JKR/WB consent, I wouldn’t have even thought to pick it up at my local bookstore, since I can use the web version for all of my needs should they arise – and most of the time, that was before I had my own copy of the books to go reference. Would it have cut into any profits for WB/JKR/JKR’s charities? Probably not. Would SVA/RDR have made a quick buck? Probably so. Would ALL of the HP fandom have cared? Most likely not.

But here we are today, sitting on the sidelines of a legal battle that could have easily been avoided had RDR/SVA initially complied with WB/JKR’s request to review [and possibly edit] the book in the first place. And that’s when everything starts to turn fishy for SVA/RDR’s case. Sure, the legal battle brought attention to the publication of the book – and could potentially have been good publicity, as I wasn’t even aware of the book until I heard about the case being brought up (on LeakyNews.com, in fact). But now, this case appears to have escalated to the point where it could potentially bring in all of the HP fandom – including Leaky – and other fandom communities. And what’s even more disappointing to me is that it appears it may force JKR to do something she probably never wanted to do in the first place (either rush the “Scottish Book”, not write it at all, or force tighter restrictions on her fans). Which ultimately hurts her fans as well.

Regardless of what happens now, I hope we’ve all learned (including SVA & RDR) that as much as we enjoy being entertained by artists of all sorts and following their works and lives, they aren’t truly ours to tamper with, and everything that they do and are could be gone tomorrow (and whatever association you may have with it). I think most of those involved in the HP fandom (from my short experience) understand that none of what they do, whether it be fanfic or WRock songs, would exist had it not been for JKR, and that should the interest in Harry Potter ever die out (God forbid!) their notoriety would disappear with it. So appreciate it today!

says: I think it's clear that writing a lexicon about someone else's book, even a bad one, can't be illegal but what's really sad is how badly this thing has been handled by all parties involved. Somehow I expected better from the author and fans of these wonderful books.